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A  TREATISE  ON 


THE  LAW  OF  EVIDENCE 


BEING  A  CONSIDERATION  OF  THE 

NATURE  AND  GENERAL  PRINCIPLES  OF  EVIDENCE,  THE  INSTRUMENTS  OF  EVIDENCE 

AND  THE  RULES  GOVERNING  THE  PRODUCTION,  DELIVERY  AND  USE  OF  EVIDENCE, 

TOGETHER    WITH    INCIDENTAL   MATTERS    OF    PRACTICE,   INCLUDING   ALSO 

UNDER  AN   ALPHABETICAL  ARRANGEMENT   THE  APPLICATION    OF 

THE  RULES  AND  PRINCIPLES  OF  EVIDENCE  TO  PARTICULAR 

ACTIONS,  ISSUES  AND  PARTIES  IN  CIVIL,   CRIMINAL, 

EQUITY  AND  ADMIRALTY  CASES,  TOGETHER 

WITH  EVIDENCE  IN  COURTS  MARTIAL 


By  BYRON  K.  ELLIOTT 


WILLIAM  F.  ELLIOTT 

Authors  of  "  Roads  and  Strkets."  "Railroads."  |]  General  Practice' 
and  "Appellate  Procedure" 


IN    FOUR   VOLUMES 


VOLUME  IV 

CRIMES,  EQUITY,  ADMIRALTY,  COURTS-MARTIAL 


INDIANAPOLIS 

THE  BOBBS-MERRILL  COMPANY 

1905 


Copyright  1905 
The  Bobbs-Merrill  Company 


T" 


THE   HOLLENBECK    PRESS 
INDIANAPOLIS 


TABLE  OF  CONTENTS. 


EVIDENCE  IN  PROSECUTIONS  FOR  CRIMES. 

CHAPTEE    CXXVII. 

GENERAL  PRINCIPLES  AND  RDXES. 


Sec. 

2702.  Crime — Definition  and  general 

principles. 

2703.  Statutory  crimes — Statutes  af- 

fecting evidence. 

2704.  Criminal  capacity. 

2705.  Constitutional  safeguards  and 

privileges. 

2706.  Burden   of   proof — Reasonable 

doubt. 

2707.  Reasonable  doubt. 

2708.  Corpus  delicti — Circumstantial 

evidence. 

2709.  Circumstantial        evidence  — 

Must  exclude  every  reason- 
able hypothesis  other  than 
that  of  guilt. 

2710.  Circumstantial   evidence — Ele- 

ments and  classification. 

2711.  Circumstantial        evidence  — 

Physical  or  external  objects 
and  appearances. 

2712.  Circumstantial  evidence — Con- 

duct and  relations  of  ac- 
cused. 

2713.  Circumstantial        evidence  — 

Proof  of  every  link  beyond 
reasonable  doubt. 

2714.  Substance     of     the     charge — 

Venue — Variance. 

(iii 


Sec. 

2715 
2716, 
2717. 

2718. 


2719. 
2720. 
2721. 
2722. 
2723. 

2724. 


2725. 


2726. 
2727. 
2728. 
2729. 
2730. 
2731. 

2732. 
2733. 


Identity. 
Criminal  intent. 
Criminal    intent — Direct    evi- 
dence. 
Criminal    intent — Circumstan- 
tial   and    presumptive    evi- 
dence. 

Motive. 

Evidence  of  other  crimes. 

Character  of  accused. 

Character  of  others. 

Conduct  indicating  conscious- 
ness of  guilt. 

Conduct  indicating  conscious- 
ness of  guilt — Flight — Con- 
cealment. 

Conduct  indicating  conscious- 
ness of  guilt — Recent  posses- 
sion of  stolen  goods. 

Defenses. 

Alibi. 

Insanity. 

Intoxication. 

Former  jeopardy. 

Former  jeopardy — Burden  and 
evidence  to  sustain. 

Provinces  of  court  and  jury. 

Cautionary  instructions. 


^PQi^.'in 


IV 


TABLE  OF   COXTENTS. 


CHAPTEK  CXXVIII. 


ABDUCTION. 


Sec. 
2734. 


2735. 
2736. 

2737. 

2738, 
2739. 


Scope  and  purpose. 

Kidnapping. 

Definition  and  meaning. 
Kidnapping — Proof. 
Kidnapping  —  C  o  m  m  o  n-law 

rule  changed. 
Kidnapping— Proof  of  intent. 
Kidnapping — Age  and  consent. 


Abduction. 

2740.  Definition  and  meaning. 

2741.  Proof  of  physical  force  not  re- 

quired. 

2742.  Taking   away    or    detention — 

Proof  suflScient. 

2743.  Proof   of   taking   away — Suffi- 

ciency. 

2744.  Proof  of  intent — Sufficient. 

2745.  Abduction  for  prostitution  or 

concubinage. 


Sec. 

2746.  Purpose       of       prostitution — 

Prima  facie  proof. 

2747.  Proof  of  detention  against  the 

will. 

2748.  Taking  from  the  house  with- 

out   consent    of    parent    or 
guardian. 

2749.  Taking  from  residence  or  cus- 

tody— Proof. 

2750.  Taking  from  parents  without 

consent. 

2751.  Taking  against  the  will  of  the 

person  abducted. 

2752.  Age  of  female  abducted. 

2753.  Previous  chaste  character. 

2754.  Previous     chaste     character — 

Burden  of  proof. 

2755.  Presumption  of  previous 

chaste  character. 

2756.  Proof   of   previovs  unchastity 

as  a  defense. 

2757.  Corroborative  proof. 


CHAPTER  CXXIX. 


ABORTION. 

Sec. 

Sec. 

2758. 

Definition  and  meaning. 

2765. 

2759. 

Common-law     and     statutory 

offense — Distinction. 

2766. 

2760. 

Proof  of  intent. 

2767. 

2761. 

Attempt  to   produce — Intent. 

2762. 

Proof  of  motive. 

2768. 

2763. 

Advising    or    administering — 

2769. 

Proof  sufficient. 

2770. 

2764. 

Effect     on     woman — Consent, 
etc. 

2771, 

Proof  of  nature  of  means 
used. 

Proof  of  pregnancy. 

Proof  of  opportunities  and  fa- 
cilities. 

Proof  of  similar  acts. 

Corroborative  proof. 

Dying  declarations. 

Necessity  for  producing  abor- 
tion—Burden of  proving 
negative  averment. 


TABLE    OF    CONTENTS. 


CHAPTER  CXXX. 


ACCESSORIES. 


Sec. 

2772.  Definition. 

2773.  Principals  and  accessories. 

2774.  Accessory  before  the  fact. 

2775.  Accessory  after  the  fact. 

2776.  Accessory  during  the  fact. 

2777.  Proof  of   principal's  guilt. 

2778.  Proof    of    principal's    guilt- 

Record    of    conviction. 

2779.  Effect  of  acquittal. 

2780.  Proof    of    principal's    guilt- 

Confession. 

2781.  Accessory    before    the    fact- 

Proof  of  guilt. 


Sec. 
2782. 

2783. 

2784. 

2785. 
2786. 

2787. 


Proof  of  advising  or  partici- 
pating. 

Crime  by  principal  must  be 
in  purview  of  accessory's 
advice. 

Accessory  after  the  fact — 
Proof  sufficient  to  consti- 
tute. 

Accessory  and  accomplice — 
Distinction. 

Evidence  of  accomplice  — 
Corroboration. 

Evidence  of  accessory — Cor- 
roboration. 


CHAPTER  CXXXI. 


ADULTERY. 

Sec. 

Sec. 

2788. 

Generally. 

2797. 

2789. 

Scope  of  chapter. 

2798. 

2790. 

Nature  of  proof. 

2799. 

2791. 

Proof  by  circumstances. 

2800. 

2792. 

Inferred   from   circumstances. 

2801. 

2793. 

Inferred    from    circumstances 

— No  proof  of  specific  act. 

2802. 

2794. 

Inference  from  particular  cir- 

cumstances. 

2803. 

2795. 

Cohabitation  or  living  in  adul- 

tery. 

2804. 

2796. 

Proof  not  limited  as  to  time 

or  place. 

2805. 

Rule  as  to  single  act. 

Marriage — Proof  of  necessary. 

Marriage — Method  of  proving. 

Marriage — Proof  by  records. 

Marriage — Proof  by  persons 
present. 

Proof  of  marriage — Admis- 
sions, et<'. 

Proof  of  marriage — Prima 
facie  case. 

Invalid  marriage  as  a  defense 
— Burden  of  proof. 

Invalid  divorce — No  defense. 


VI 


TABLE    OF    CONTENTS. 


CHAPTER  CXXXII. 


ARSON. 


Sec. 

2806.  Generally. 

2807.  Presumptions. 

2808.  Burden  of  proof. 

2809.  Questions  of  law  or  fact. 

2810.  Evidence  of  motive. 

2811.  Evidence  of  threats. 

2812.  Evidence      of      previous 

tempts. 


at- 


Sec. 

2813.  Evidence   of   other   fires   and 

crimes. 

2814.  Evidence  of  certain  facts  con- 

cerning     the      property 
burned. 

2815.  Admissions  and  confessions. 

2816.  Evidence  in  general. 


CHAPTER  CXXXIII. 

ASSAULT  AND  ASSAULT   AND  BATTERY. 


Sec. 

2817. 

2818. 

2819. 

2820. 

2821. 

2822. 
2823. 
2824. 
2825. 

2826. 

2827. 
2828. 
2829. 
2830. 
2831. 

2832. 

2833. 

2834.. 


Assault. 
Definition. 
Proof  of  intent. 
Intent  inferred  from  act. 
Intent  not  always  necessary. 
Intent — When  proof  need  not 

show. 
With  present  ability. 
Present  ability — Meaning. 
Attempt  or  offer  to  strike. 
Assault  by  striking  at— Vari- 
ance. 
With    present    ability— Strik- 
ing distance. 
Assault  and  menace. 
Violence  intended. 
Drawing  firearms. 
Pointing  firearms  necessary. 
Drawing    unloaded    gun — Not 

an  assault. 
Drawing    unloaded     gun — An 

assault. 
Unloaded    gun — Civil    and 

criminal  assault. 
Drawing    gun — B  u  r  d  e  n    of 
proof  as  to  being  loaded. 


Assault  and  battery. 

2835.  Definition. 

2836.  Rule  stated  by  Mr.  Greenleaf. 

2837.  Direct  striking  not  necessary. 


essential    to    the 


Sec. 

2838.  Intent. 

2839.  Intent  not 

crime. 

2840.  Intent — Presumption. 

2841.  Intent — Inferred  from  circum- 

stances. 

2842.  Injury  to  feelings. 

2843.  Parent — Assault    and    battery 

on  child. 

2844.  Teacher — Assault  and  battery 

on  pupil. 

2845.  Assault  and  battery  by  parent 

— Presumption   and    burden 
of  proof. 

2846.  Excessive    punishment — What 

constitutes. 

2847.  Self-defense. 

2848.  Self-defense— Excessive 

2849.  Self-defense — Duty    of 

ant. 

2850.  Defense  of  family. 

2851.  Defense  of  possession. 

2852.  Defense  of  property. 

2853.  Degree  of  force. 

2854.  Degree  of  force — Distinction. 

2855.  Self-defense— Burden  of  proof. 

2856.  Retaking   property— No   justi- 

fication. 

2857.  Retaking   p  r  o  p  e  r  t  y— When 

justifiable. 


force, 
assail- 


TABLE   OF    CONTENTS. 


Vll 


CHAPTEE  CXXXIV 


BIGAMY. 

Sec. 

Sec. 

2858. 

Scope  of  Chapter. 

2867. 

2859. 

Definition. 

2860. 

Jurisdiction — Proof. 

2868. 

2861. 

Validity  of  first  marriage. 

2862. 

First     marriage — Method 
proof. 

of 

2869. 

2863. 

First  marriage — Proof  by 
missions. 

ad- 

2870. 

2864. 

Second     marriage — Proof 
tablishes   offense. 

es- 

2871. 

2865. 

Second     marriage  —  Presump- 

2872. 

tion. 

2866. 

First  husband  or  wife  living 

2873. 

—Proof. 

2874. 

First  husband  or  wife  living 

— Presumptions. 
Absence  of  husband  or  wife — 

Effect  and  burden. 
First  husband  or  wife  living 

— Distinction  in  statutes. 
Polygamy — Proof     under     Ed- 
mund's law. 
Second  marriage  in  good  faith 

— No  defense. 
Second  marriage  in  good  faith 

— Defense. 
Divorce  as  a  defense — Burden. 
First    and    second    wives    as 

witnesses. 


CHAPTER  CXXXV 


BLACKMAIL. 


Sec. 

2875.  Nature  and  extent. 

2876.  Definition. 

2877.  Statutory  definition. 

2878.  Extortion. 

2879.  Extortion  and  bribery. 

2880.  Proof  of  threat. 

2881.  Parol  proof  to  aid  or  explain 

writing. 

2882.  Threat  of  prosecution. 

2883.  Threat— Prosecution  by  third 

person. 


Sec. 

2884.  Instituting   criminal    proceed- 

ings— Intent. 

2885.  Proof  of  intent  to  extort. 

2886.  Threats    to    collect    bona    fide 

indebtedness. 

2887.  Truth  or  falsity  of  charge  im- 

material. 

2888.  Knowledge     that     crime     was 

committed — No  defense. 


CHAPTER  CXXXVI. 

BLASPHEMY. 


Sec. 

Sec. 

2889. 

Generally. 

2894 

2890. 

Common  law  definitions. 

2891. 

Punishable  at  common  law. 

2895, 

2892. 

Statutory  definition. 

2896. 

2893.  Character  of  language  used. 


Words  used  in  hearing  of  otlt- 

ers — Proof. 
Profanity — Nuisance. 
Words  used — Illustration. 


nil 


TABLE    OF    CONTENTS. 


CHAPTER  CXXXVII. 


BRIBERY. 


Sec. 

2897.  Generally. 

2898.  Burden  of  proof. 

2899.  Questions   of   law  or   fact. 

2900.  Identity. 

2901.  Intent. 

2902.  Evidence     for     prosecution- 

Other  acts  of  accused. 

2903.  Documentary  evidence. 


Sec. 

2904.  Financial  dealings  of  parties. 

2905.  What    need    not    be    proved— 

Variance. 

2906.  Accomplices  —  Decoy  —  Con- 

spirators. 

2907.  Confessions  and   admissions. 

2908.  Defenses. 


CHAPTER  CXXXVIII. 


BURGLARY. 


Sec. 

2909.  Generally— Definition  and  ele- 

ments. 

2910.  Burden  of  proof  and  presump- 

tions. 

2911.  Questions  of  law  or  fact. 

2912.  Evidence  of  breaking  and  en- 

tering. 


Sec. 

2913.  Evidence  as  to  dv/elling  house 

and   ownership. 

2914.  Evidence  as  to  time. 

2915.  Evidence  as  to  intent. 

2916.  Identification. 

2917.  Other  offenses. 

2918.  Possession  of  stolen  property. 

2919.  Defenses. 


CHAPTER  CXXXIX. 


CONSPIRACY. 


Sec. 

2920.  G  e  n  e  r  a  1 1  y— Distinction  be- 

tween    civil    and     criminal 
conspiracy. 

2921.  Definition. 

2922.  Statutory  conspiracy. 

2923.  Conspiracy  not  an  attempt  to 

commit  crime. 

2924.  Pleading  conspiracy. 

2925.  Pleading— Stating  means   em- 

ployed. 


Sec. 
2926. 

2927. 
2928. 

2929. 
2930. 

2931. 


Pleading  overt  act— Surplus- 
age. 

Criminal  conspiracy. 

Criminal  conspiracy — M  a  r  y  - 
land  rule. 

"Unlawful" — Meaning. 

"Unlawful" — Wisconsin  and 
New  Hampshire  rule. 

Public  injuries. 


TABLE    OF    CONTENTS. 


IX 


CHAPTER  CXXXIX-Continued. 


Sec.  Sec. 

2932.  Public    injuries— New    Hamp-     2944. 

shire  rule. 

2933.  Private  injuries. 

2934.  Order  of  proof.  2945. 

2935.  Two  or  more  engaged. 

2936.  Proof  of  conspiracy.  2946. 

2937.  Proof      of      conspiracy — Suffi- 

ciency. 2947. 

2938.  Proof  of  formal  agreement  not 

necessary.  2948. 

2939.  Declarations  of  co-conspirator 

— Admissibility  as  evidence.     2949. 

2940.  Declarations  of  co-conspirator 

Preliminary  proof.  2950. 

2941.  Declarations  of  co-conspirator 

— Prima  facie  case.  2951. 

2942.  Prima  facie  case — Suflficiency. 

2943.  Declarations  of  co-conspirators 

— Limitations  to  rule. 


Declarations  made  after  con- 
spiracy terminated — R  u  1  e 
and  exceptions. 

Proof  when  co-conspirators 
are  not  named. 

Overt  acts — Proof  of  not  re- 
quired. 

Overt  acts — When  proof  neces- 
sary. 

Overt  acts  and  conspiracy 
merged. 

Labor  combinations — W  hen 
criminal. 

Labor  combinations — Vermont 
rule. 

Labor  combinations — Strikes, 
boycott  and  picketing. 


CHAPTER  CXL. 


COUNTERFEITING. 


Sec. 

2952.  Generally. 

2953.  What    must    be    proved — Bur- 

den— Presumptions. 

2954.  Knowledge — Intent  —  Similar 

offenses. 

2955.  Possession  by  accused. 

2956.  Existence  of  bank. 


Sec. 

2957.  Admissions. 

2958.  Accomplices. 

2959.  Expert  evidence. 

2960.  Production    of    counterfeit    at 

trial. 

2961.  Defenses. 


CHAPTER  CXLI. 


EMBEZZLEMENT. 


Sec. 

2962.  Generally. 

2963.  Distinguished  from  larceny. 

2964.  Presumption. 

2965.  Burden  of  proof. 

2966.  Question  of  law  or  fact. 

2967.  Evidence  of  intent. 


Sec. 

2968.  Written  evidence. 

2969.  Evidence  in  general. 

2970.  Demand. 

2971.  Defences. 

2972.  Weight  and  sufficiency  of  evi- 

dence. 


TABLE   OF   CONTENTS. 


CHAPTER  CXLII. 


FALSE    PRETENSES. 


Sec. 

2973.  Generally. 

2974.  Distinguished   from   other   of- 

fenses. 

2975.  Intent. 

2976.  Other  crimes  and  transactions 

— Preparation. 

2977.  Symbol  or  token. 

2978.  The  pretense. 

2979.  The    pretense  —  Whether    it 

must   be   calculated    to    de- 
ceive. 


Sec. 

2980.  Evidence    to    prove    the    pre- 

tense. 

2981.  Reliance  on  pretense. 

2982.  Defenses. 

2983.  Declarations  and  admissions — 

Co-conspirators. 

2984.  SuflBciency  of  evidence — Vari- 

ance— Miscellaneous. 


CHAPTER  CXLIIL 


FORGERY. 


Sec. 

2985.  Definition  —  Essential        ele- 

ments. 

2986.  Presumptions. 

2987.  Burden  of  proof. 

2988.  Question  of  law  or  fact. 

2989.  "Who  competent  to  testify. 

2990.  Proof  of  intent  and  knowledge. 

2991.  Proof  of  handwriting. 

2992.  Production    of   forged    instru- 

ment. 


Sec. 

2993.  Secondary  evidence  of  forged 

instrument. 

2994.  Other  forged  instruments. 

2995.  Evidence  in  general. 

2996.  Evidence  in  defense. 

2997.  Weight  and  sufficiency  of  evi- 

dence. 

2998.  Variance. 


CHAPTER  CXLIV. 


Sec. 

G 

tAMB 

ILliNG. 

Sec. 

2999. 

Generally. 

3005. 

3000. 

The  wager  or  stake. 

3001. 

Publicity  of  the  game. 

3006. 

3002. 

Manner  of  playing. 

3007. 

3003. 

Statutes  as  to  prima  facie 

evi- 

3008. 

dence. 

3009. 

3004. 

Circumstantial    e  v  i  d 

e  n  c  e — 

3010. 

Other  offenses. 

3011. 

Gambling  instruments  in  evi- 
dence. 
Accomplices  and  accessories. 
Variance. 

Common  gamblers. 
Keeping  gambling  house. 
Minors  playing. 
Lotteries. 


TABLE    OF    CONTENTS. 


Zl 


CHAPTER  CXLV. 


HOMICIDE. 


Sec. 

3012. 
3013. 
3014. 
3015. 
3016. 


3017. 
3018. 

3019. 

3020. 
3021. 

3022. 

3023. 
3024. 
3025. 

3026. 
3027. 

3028. 
3029. 

3030. 


Sec. 

Definition  and  classification.        3031. 

Presumption  of  innocence.  3032. 

Presumptions — As  to  intent. 

Presumptions — Not  conclusive.     3033. 

Presumption  of  malice — From 

deliberation  or  want  of  prov-     3034. 
ocation.  3035. 

Presumptions  as  to  malice. 

Presumptions — When  not  pre- 
sumed— Conflicting  views.         3036. 

Presumptions  as  to  degree  of 

offense.  3037. 

Other  presumptions.  3038. 

Burden  of  proof — As   to  mal- 
ice. 3039. 

Burden  of   proof — As  to  self- 
defense  and  insanity.  3040. 

Burden  of  proof — In  general. 

Questions  of  law  or  fact.  3041. 

Evidence  as  to  physical  condi-     3041a 
tion  and  the  body. 

Evidence  as  to  motive.  3042. 

Means     used     and     cause     of     3043. 
death.  3044. 

Articles  in  evidence. 

Attendant  circumstances — Res     3045. 
gestae. 

Attendant  circumstances — Dec-     3046. 
larations. 


Dying  declarations. 

Dying  declarations — When  ad- 
missible. 

Dying  declarations — When  not 
admissible. 

Confessions. 

Previous  circumstances — 
Threats,  preparation  and 
previous  attempts. 

Previous  circumstances — Some 
others. 

Proceedings  at  inquest. 

Evidence  as  to  character — Of 
deceased. 

Evidence  as  to  character — Of 
accused. 

Evidence  of  habits  and  dispo- 
sition. 

Evidence  as  to  self-defense. 
Evidence  as  to  self-defense — 
Justification  or  excuse. 

Evidence  as  to  other  defenses. 

Evidence  in  general. 

Evidence  in  general — Admissi- 
ble. 

Evidence  in  general — Not  ad- 
missible. 

Weight  and  suflSciency — Vari- 
ance. 


CHAPTER  CXLVI. 


Sec. 

3047.  Definition  and  elements. 

3048.  Distinguished       from 

crimes. 

3049.  The  taking. 

3050.  The  trespass. 

3051.  The  carrying  away. 

3052.  The  property. 

3053.  Ownership. 

3054.  Non-consent. 


:CENT. 

Sec. 

3055. 

The  intent. 

:     3056. 

The      intent — Possession      ob- 

tained by  fraud. 

3057. 

Other  crimes. 

3058. 

Recent    possession    of    stolen 

goods. 

3059. 

Defenses. 

3059a 

,.  Miscellaneous — Recent  cases. 

xn 


TABLE   OF    CONTENTS. 


CHAPTEK  CXLVII. 


NUISANCE. 


Sec. 

3060. 

3061. 

3062. 

3063. 

3064. 

3065. 


Generally. 

Examples  of  public  nuisance. 

Evidence  for  prosecution. 

Evidence  of  reputation. 

Defenses. 

Disorderly  houses. 


Sec. 

3066.  Obstructing  highways. 

3067.  Obstructing    or    polluting    wa- 

ters. 

3068.  Public  Indecency. 

3069.  Storing  explosives. 


CHAPTEE  CXLVIII. 


PERJURY. 


Sec.  Sec. 

3070.  Definition — Essential  elements.  3080. 

3071.  Burden  of  proof.  3081. 

3072.  Presumptions.  3082. 

3073.  Questions  of  law  or  fact.  3083. 

3074.  Oath  and  proceedings.  3084. 

3075.  Jurisdiction    of    tribunal — Au-  3085. 

thority  of  officer.  3086. 

3076.  Jurisdiction    of    tribunal— Re-  3087. 

cent  cases.  3088. 

3077.  Falsity.  3089. 

3078.  Motive  or  intent.  3090. 

3079.  Materiality.  3091. 


Materiality — Collateral  matter. 
Materiality — How  shown. 
Record  of  former  proceedings. 
Best  evidence. 
Stenographer's  notes. 
Parol  evidence. 
Res  gestae. 

Circumstantial  evidence. 
Admissions  and  confessions. 
Corroboration. 
Defenses. 
Variance. 


CHAPTEE  CXLIX. 


RAPE. 


Sec. 

Sec. 

3092. 

Generally. 

3102. 

Corroboration. 

3093. 

Burden  of  proof. 

3103. 

Admissions  and  confessions. 

3094. 

Pi'esumptions. 

3104. 

Evidence      generally — Circum- 

3095. 

Age  of  prosecutrix. 

etantial  evidence. 

3096. 

Consent. 

3105. 

Other  offenses. 

3097. 

Resistance. 

3106. 

Real  evidence. 

3098. 

Res  gestae. 

3107. 

Physical      examination      and 

3099. 

Complaint. 

medical  testimony. 

3100. 

Complaint — Particulars. 

3108. 

Defenses. 

3101. 

Character  and  reputation. 

3109. 

Variance. 

TABLK    OF    CONTENTS. 


Xlll 


CHAPTER   CL. 


RECEIVING  STOLEN  GOODS. 


Sec. 

3110.  Meaning  of  term. 

3111.  Presumptions. 

3112.  Burden  of  proof. 

3113.  Burden     of     proof — Essential 

elements  and  material  facts. 

3114.  Knowledge    that    goods    were 

stolen. 

3115.  Intent  to  defraud. 


Sec. 

3116.  Character  evidence. 

3117.  Identification  of  goods. 

3118.  Other    instances    of    receiving 

stolen  goods. 

3119.  Defenses. 

3120.  Evidence  in  general. 

3121.  Sufficiency  of  evidence. 


CHAPTER  CLI. 


RIOTS    AND    UNLAWFUL    ASSEMBLIES. 


Sec. 

3122.  Meaning  of  terms. 

3123.  Presumptions    and    burden   of 

proof. 

3124.  Order  of  proof. 

3125.  Number    of    persons    at    least 

three. 


Sec. 

3126.  Proof  as  to  participation. 

3127.  Proof  as  to  terror  of  the  peo- 

ple. 

3128.  Evidence  in  general. 


CHAPTER    CLII. 


ROBBERY. 


Sec. 

3129.  Definition  and  elements. 

3130.  Presumptions — O  w  n  e  r  s  h  i  p 

from  possession. 

3131.  Presumptions — Fear  and  other 

presumptions. 

3132.  Intent. 
Identity  of  accused. 
Res  gestae. 


3133 
3134 


Sec. 

3135.  Evidence  of  value. 

3136.  Recent    possession    of    stolen 

property. 

3137.  Evidence  of  other  offenses. 

3138.  "Circumstantial    evidence. 

3139.  Circumstantial  evidence — Cor- 

roboration. 

3140.  Defenses. 


CHAPTER    CLIII. 

SEDUCTION. 


Sec. 

3141.  Definition — Elements. 

3142.  Burden  of  proof. 


Sec. 

3143.  Presumptions. 

3144.  Questions  of  law  or  fact. 


XIV 


TABLE    OF    CONTENTS. 


CHAPTER  CLIII-  Continued. 


Sec. 

3145.  Chastity. 

3146.  Reputation. 

3147.  Reformation. 

3148.  Promise  of  marriage. 

3149.  Res  gestae. 


Sec. 

3150.  Admissions. 

3151.  Circumstantial  evidence. 

3152.  Corroboration. 

3153.  Defenses. 


CHAPTER    CLIV. 


TREASON. 


Sec. 

3154.  Meaning  of  term. 

3155.  Burden  of  proof. 

3156.  Two  witnesses  essential. 

3157.  Confession     of     treason — Cor- 

roboration. 

3158.  Levying  war. 


Sec. 

3159. 

3160. 

3161. 

3162. 


No  accessories. 
Res  gestae. 
Other  overt  acts. 
Defenses. 


3163.  Evidence  in  general. 

3164.  Misprision  of  treason. 


CHAPTER    CLV. 


MISCELLANEOUS  OFFENSES. 


Sec. 

3165.  Adulteration  of  food  or  drink. 

3166.  Carrying    concealed    weapons. 

3167.  Cruelty  to  animals. 

3168.  Incest. 

3169.  Libel. 

3170.  Liquor  law  violations. 


Sec. 

3171.  Liquor  law  violations — Intent 

— K  n  o  w  1  e  d  g  e — Presump- 
tions. 

3172.  Malicious  mischief — Malicious 

trespass. 
3172a.  Sodomy. 

3173.  Statutory    crimes    generally — 

Caution. 


EVIDENCE  IN  EQUITY  PROCEEDINGS. 

CHAPTER  CLVI. 


PROCEEDINGS    IN    EQUITY    GENERALLY. 


Sec. 

3174.  Rules   of   evidence   much   the 

same  as  at  law. 

3175.  No  right  to  jury — Province  of 

court — Advisory  verdict. 

3176.  Submitting  issues  to  jury. 

3177.  Effect  of  verdict. 


Sec. 

3178.  Competency — Mode    of   taking 

testimony  and  making  proof. 

3179.  United  States  equity  rules. 

3180.  United    States    equity    rules — 

Answer  as  evidence. 


TABLE    OF    COXTEN'TS. 


XV 


CHAPTER   CLVI— Continued. 


Sec.  Sec. 

3181.  United    States   equity    rules—     3198. 

Commission    to    take    testi- 
mony— Oral  hearing.  3199. 

3182.  United    States   equity    rules — 

Deposition  under  act  of  Con- 
gress. 3200. 

3183.  United    States   equity    rules — 

Time     allowed     for    taking 
testimony. 

3184.  United    states   equity    rules — 

Form  of  last  interrogatory.     3201. 

3185.  United    States    equity    rules — 

On    reference   to   master.  3202. 

3186.  United    States    equity    rules—     3203. 

Proceedings  before  master.       3204. 

3187.  United    States   equity    rules — 

Witnesses  before  master  or     3205. 
examiner. 

3188.  United    States   equity   rules — 

Affidavits  and  documents.         3206. 

3189.  United    States   equity    rules—     3207. 

Examination  of  creditor  or 
claimant.  3208. 

3190.  United    States    equity    rules—     3209. 

Accounts  —  Production — Ex-     3210. 
amination  of  party.  3211. 

3191.  United    States    equity    rules — 

Master's  report — Exceptions.     3212. 

3192.  Sources  of  evidence  in  equity.     3213. 

3193.  Admissions    generally — Plead-     3214. 

ings.  3215. 

3194.  Admissions  by  agreement.  3216. 

3195.  Documents — Discovery. 

3196.  Proof  of  documents.  3217. 

3197.  Bill  as  evidence. 


Answer  as  evidence  for  de- 
fendant. 

Answer  as  evidence  for  de- 
fendant—  Limitations  and 
exceptions. 

Answer  as  evidence  for  de- 
fendant— Rule  where  com- 
plainant does  not  reply — 
Hearing  on  bill  and  an- 
swer. 

Responsive  answer — Illustra- 
tive cases. 

Answers  not  responsive. 

Test  of  responsiveness. 

Answer  false  in  part — Incred- 
ible answer. 

Questioning  competency  and 
impeaching  defendant  who- 
answers  under  oath. 

Answer  of  co-defendant. 

Answer  not  evidence  against, 
infants. 

Plea  as  evidence. 

Cross-bill  and  answer. 

Witnesses. 

What  must  be  proved — Bur- 
den. 

Substance  of  issue. 

Substance  of  issue — Variance. 

Evidence  confined  to  issues. 

Parol  and  secondary  evidence. 

AVeight  and  sufficiency  of  evi- 
dence. 

Objections  and  exceptions. 


CHAPTER  CLVII. 


EEFERENCE    TO    MASTER. 


Sec. 

3218.  Discretionary. 

3219.  In  what  cases. 

3220.  Hearing  on  bill  and  answer — 

Master    not    to    take    testi- 
mony. 

3221.  Issues  to  be  first  determined — 

Scope  of  order. 


Sec. 

3222.  Duty   of   parties  to   prosecute 

reference. 

3223.  Evidence  before  master. 

3224.  Objections  to  evidence. 

3225.  Taking    additional    testimony- 

after  time  fixed. 


XVI 


TABLE    OF    CONTENTS. 


Sec. 
3226 


CHAPTER  CLVII— Continued. 

Sec. 


When  evidence  should   be  re- 
ported. 

3227.  Master's  report. 

3228.  Submitting  draft  of  report. 

3229.  Objections  and  exceptions  be- 

fore master. 

3230.  Irregularities  in  proceedings. 

3231.  Exceptions  to  report. 


3232.  Form  of  exceptions. 

3233.  Action  on  exceptions. 

3234.  Recommittal — Re-reference. 

3235.  Correction     of     report  —  Con- 

firmation. 

3236.  Weight  to   be   given   master's 

finding. 


EVIDENCE  IN  ADMIRALTY  CASES. 


CHAPTEK  CLVIII. 


ADMIRALTY   JURISDICTION. 


Sec. 

3237.  Generally. 

3238.  Origin      and      history  — "Ad- 

miral." 

3239.  Nature  of, 

3240.  Admiralty    jurisdiction — Unit- 

ed States  rule. 

3241.  Admiralty    law    follows    civil 

law. 

3242.  Admiralty   jurisdiction  —  Con- 

trolled by  maritime  laws. 


Sec. 
3243. 

3244. 

3245. 


3246. 
3247. 


Jurisdiction  must  appear — Ef- 
fect of  tide. 

Admiralty  law — Administered 
in  the  United  States. 

Influence  of  constitution  and 
statute  on  the  admiralty 
laws. 

"High  seas" — Meaning. 

High  seas — Great  Lakes. 


CHAPTEE  CLIX. 


ADMIRALTY    PRACTICE. 


Sec. 

3248.  Nature — Generally. 

3249.  Nature  of  admiralty  cases. 

3250.  Courts  of  admiralty  resemble 

courts  of  equity. 

3251.  Equitable     principles     applied 

in  cases  of  negligence. 

3252.  Flexibility  of  admiralty  courts 

— Admissibility  of  evidence. 

3253.  Liberal  rules  of  evidence. 


Sec. 

3254.  Proceedings   yield    to    circum- 

stances. 

3255.  Proceedings    not    included    in 

statutes      unless      expressly 
named. 

3256.  Evidence     of    usage  —  Sailing 

rules. 

3257.  Judicial  notice. 

3258.  Foreign  laws — When  proof  re- 

quired. 


TABLE    OF    COXTENTS. 


XVll 


CHAPTER  CLX. 


PLEADING    AND    PROOF. 


Sec. 

3259.  Proof   must   come   within   the 

issues. 

3260.  Parties  bound  by  allegations. 

3261.  Effect  of  variance. 

3262.  Omissions     and     variations — 

Effect. 

3263.  Amendments — When    allowed. 

3264.  Amendments — Time    of    mak- 

ing and  effect. 

3265.  Amendments — Not  allowed. 

3266.  Amendments  not  allowed — Il- 

lustrations. 


Sec. 
3267. 

3268. 
3269. 


3270. 
3271. 

3272. 


Amendments — Hearing  on  ap- 
peal. 

Evidence  heard  on  appeal. 

Amendments  on  appeal  and 
motion  to  examine  wit- 
nesses— Distinction. 

Pleadings  as  evidence. 

Admissions  in  pleadings — Ef- 
fect. 

Special  damages  —  Awarded 
under  general  pleading. 


CHAPTER  CLXI. 


INTERROGATORIES. 


Sec. 


Sec. 

3278.  Limitations. 


3273.  Practice— Generally. 

3274.  Time  of  delivering  interroga-     3279.  Materiality  of  interrogatories. 

tories.  3280.  Interrogatories  as   evidence. 

3275.  By  libelant.  3281.  Interrogatories 

3276.  By  defendant. 

3277.  Office  of  interrogatories. 


as     evidence 
for  or  against  party. 


CHAPTER  CLXII. 


DISCOVERY   AND   INSPECTION    OF    DOCUMENTS. 


Sec. 

3282.  Discovery  of  documents. 

3283.  Demand. 

3284.  Application     for     discovery — 

Practice. 

3285.  D  i  SCO  ve  ry — Discretion     of 

judge.  ' 


Sec. 

3286.  Production  of  documents — Af- 

fidavit. 

3287.  Discovery — Illustrations. 

3288.  Privileged  documents. 

3289.  Documents  privileged. 

3290.  Documents — When  privileged. 

3291.  Waiver  of  privilege — Effect. 


Vol.  4  Elliott  Ev. — ii 


XVIU 


TABLE    OF    CONTENTS. 


CHAPTER  CLXIII. 


WAGES    OF    SEAMEN. 


Sec. 

3292.  Employment    of    officers    and 

seamen. 

3293.  Contracts      of      seamen — Con- 

struction    and     burden     of 
proof. 

3294.  Contract   for   wages — Dissolu- 

tion. 

3295.  Wages — Burden  of  proof. 

3296.  Forfeiture  of  wages. 

3297.  Abandonment       of       vessel — 

Abandoned  by  officers. 

3298.  Charge     of     voyage — Justifies 

abandonment. 

3299.  Unseaworthiness — Effect,    bur- 

den and  presumption. 

3300.  Discharge  of  seamen — Miscon- 

duct. 


Sec. 

3301.  Discharge  of  seamen — Drunk- 

enness. 

3302.  Misconduct      of      master      or 

mate. 

3303.  Recovery      of      wages — Vessel 

unladen. 

3304.  Time     of     unlading     vessel — 

Presumption. 

3305.  Wages — Increase. 

3306.  Loss  of  ship — Effect  on  wages. 

3307.  Effect  of  desertion. 

3308.  Desertion — End  of  voyage. 

3309.  Desertion  and  return. 

3310.  Short  allowance  of  provisions 

— Effect  on  wages. 

3311.  Short  allowance  of  provisions 

— Burden  of  proof. 


CHAPTEE  CLXIV. 


LOG-BOOK. 


Sec. 

3312.  Prima  facie  evidence. 

3313.  Admissibility. 

3314.  Weight  and  competency. 

3315.  Conclusiveness. 


Sec. 

3316.  Varied  by  parol. 

3317.  As  evidence  of  desertion  and 

wages. 


CHAPTER  CLXV. 


PRIZE    CASES. 


Sec, 

3318.  Practice. 

3319.  Jurisdiction  in  prize  cases. 
3320. 
3321. 


3322. 


Jurisdiction  and  relief. 
Capture    in    neutral   territory, 

effect. 
Neutral  protection — Proof  and 

effect. 


Sec. 

3323.  Presumptions  in  prize  case. 

3324.  Presumptions  as  to  blockade. 

3325.  Prima  facie  evidence. 

3326.  Burden  of  proof. 

3327.  Burden  on  claimant. 

3328.  Burden  on  claimant — General 

rule. 


TABLE    OF    CONTENTS. 


XIX 


CHAPTER  CLXV— Continued. 


Sec.  Sec. 

3329.  Burden  on  claimant — Illustra-     3339. 

tions.  3340. 

3330.  Competency  of  witnesses. 

3331.  Condemnation — False  claim.         3341. 

3332.  Preparatory  hearing — Further 

proof.  3342. 

3333.  Examination    of    crew — Time 

and  manner.  3343. 

3334.  Further       proof — When       al- 

lowed. 3344. 

3335.  Further  proof — When   not  al-     3345. 

lowed. 

3336.  Further  proof  allowed  in  joint     3346. 

or  collusive  captures. 

3337.  Ship's     papers — Prima     facie     3347. 

proof  requisite. 

3338.  Ship's  papers — Production. 


Ship's  papers — Custody. 

Ship's  papers  —  Destruction 
and  spoliation. 

Ship's  papers  —  Absence, 
fraudulent  concealment,  etc. 

Ship's  papers — Enemy's  li- 
cense. 

Ship's  papers — Passport,  flags, 
etc. 

Joint  capture — Presumption. 

Joint  capture — Burden  of 
proof. 

Joint  capture — Sight  and  sig- 
nal distance. 

Joint  capture — Common  en- 
terprise. 


CHAPTER  CLXVI. 


SALVAGE. 


Sec. 

Sec. 

3348. 

Generally. 

3359. 

3349. 

Definition. 

3360. 

3350. 

Definitions — By  courts. 

3351. 

Success  essential. 

3361. 

3352. 

Success  essential — Exceptions. 

3353. 

Burden  of  proof. 

3362. 

3354. 

Essential       elements  —  Claim- 

ant's proof. 

3363. 

3355. 

Rescue — Impending  peril. 

3356. 

Impending     peril — Degree     of 
proof. 

3364. 

3357. 

Derelict  property. 

3365. 

3358. 

Derelict     property — Duty     of 
finder. 

3366. 

Towage  and  salvage. 

Amount  of  salvage — Circum- 
stances control. 

Agreement  for  salvage  serv- 
ices— Effect. 

Agreement — Effect  as  a  meas- 
ure for  amount  of  salvage. 

Agreement  valid — A  bar  to 
salvage  claim. 

Agreement  invalid — Evidence 
of  need  of  aid. 

Agreement — Burden  of  proof. 

Claim  for  salvage — Forfeit- 
ure. 


XX 


TABLE    OF    CONTENTS. 


CHAPTER  CLXVII. 


COLLISIONS. 


Sec. 

3367. 

3368. 

3369. 

3370. 

3371. 

3372. 

3373. 

3374. 

3375. 

3376. 

3377. 

3378. 

3379. 

3380. 


Burden  of  proof. 

Inscrutable  fault— Rule. 

Inevitable  accident. 

Presumption  of  fault. 

Complaining  vessel  at  fault — 
Degree  and  burden  of  proof. 

Both  vessels  at  fault — Divi- 
sion of  damages. 

Comparative  fault—  Division 
of  damages. 

Both  vessels  at  fault— Dam- 
age to  third. 

Violating  statutory  duty- 
Burden  of  proof. 

Violating  maritime  laws  — 
Justification. 

Steamer  must  keep  out  of  way 
— Burden  of  proof. 

Steamer  and  sailing  vessel — 
Prima  facie  liability. 

Collision  with  vessel  at  an- 
chor —  Burden  and  prima 
facie  case. 

Absence  of  lookout  —  Prima 
facie  case. 


Sec. 

3381.  Absence    of    lookout — Burden 

of  proof. 

3382.  Burden  on  vessel  having  wind 

free. 

3383.  Vessel     adrift  —  Burden     and 

presumption. 

3384.  Towing    vessel — Liability    for 

collision  with  towed  vessel. 
338-5.  Collision  in  fog. 

3386.  Rate  of  speed  during  fog. 

3387.  Collision    in    fog— Burden    of 

proof  and  prima  facie  case. 

3388.  Rule  as  to  moderate   rate   of 

speed. 

3389.  Moderate     speed  —  Criterion 

and  burden. 

3390.  Proof  of  speed  not  conclusive 

evidence  of  negligence. 

3391.  Mutual  negligence. 

3392.  Contributory   negligence    does 

not  prevent  recovery. 

3393.  Contributory    negligence    does 

not  prevent  recovery  —  Ex- 
ceptions. 

3394.  What  damages   recoverable. 

3395.  Proof  of  usage. 


EVIDENCE  IN  COURTS-MARTIAL. 

CHAPTER  CLXVIII. 

ORIGIN    AND   HISTORY. 


Sec. 

3396.  Ancients— Generally. 

3397.  History   of    courts-martial    in 

England. 


Sec. 

3398.  History    of    courts-martial    in 

the  United  States. 

3399.  Military  law. 

3400.  Martial   law. 


TABLE    OF    CONTENTS. 


5X1 


CHAPTER  CLXIX. 


NATURE   AND   ORGANIZATION. 


Sec. 

3401. 

3402. 

3403. 

3404. 
3405. 
3406. 
3407. 
3408. 


Court-martial  is  a  court. 

General  courts-martial  —  Or- 
ganization, etc. 

Regimental  or  corps  court- 
martial. 

Number  composing  court. 

Garrison  court-martial. 

Summary  courts-martial. 

Presiding  officer. 

Presiding   officer — Functions. 


Sec. 
3409. 

3410. 

3411. 
3412. 

3413. 

3414. 


Judge  advocate  —  Appoint- 
ment. 

Judge  advocate — "Who  may  be 
appointed. 

Judge  advocate — Powers. 

Judge  advocate — Duties  to  the 
court. 

Judge  advocate — Duties  to  the 
accused. 

Members — Qualifying. 


CHAPTEE  CLXX. 


JURISDICTION. 


Sec. 

3415. 

3416. 

3417. 

3418. 

3419. 
3420. 


3421. 
3422. 


Generally. 

Jurisdiction — Non-territorial. 
Jurisdiction — Criminal. 
Jurisdiction      of      regimental, 

garrison  or  summary  courts. 
Jurisdiction — Acts  binding. 
Jurisdiction  to  determine 

whether   or   not   accused    is 

a  soldier. 
Jurisdiction  over  civilians. 
Jurisdiction    over    civilians — 

Aiding. 


Sec. 

3423.  Jurisdiction    over    civilians  — 

Limitations. 

3424.  Presumptions. 

3425.  Burden  of  proof. 

3426.  Judgments    of    courts-martial 

not    subject    to    review    by 
civil  courts. 

3427.  Judgments    of    courts-martial 

subject    to    review    by    civil 
courts. 


CHAPTEE  CLXXI. 


MATTERS    OF   PRACTICE. 


Sec. 

3428.  Arrest. 

3429.  Close  and  open  arrest. 

3430.  Report  of  arrest  and  notice  of 

charge. 

3431.  Right     of     accused     to     have 

counsel. 


Sec. 

3432.  Privilege  of  counsel. 

3433.  Status  and  privilege  of  coun- 

sel. 

3434.  Right  of  challenge. 

3435.  Commander  as  prosecutor. 

3436.  Commander  not  prosecutor. 


xxu 


TABLE   OF    CONTENTS. 


CHAPTER  CLXXII. 


PLEADINGS. 


Sec. 

3437.  Generally. 

3438.  Certainty. 

3439.  Charge  and  specification. 


Sec. 

3440.  Statement  of  charge. 

3441.  Time  and  place. 

3442.  Answer. 


CHAPTER  CLXXIII. 


TRIAL  AND  FINDINGS. 


Sec. 

Sec. 

3443. 

Sessions. 

3452. 

3444. 

Continuance. 

3453 

3445. 

Evidence  heard  in  open  court. 

3454 

3446. 

Opening  statement. 

3447. 

Swearing  witnesses. 

3455 

3448. 

Separation  of  witnesses. 

3449. 

Order  of  introduction  of  tes- 

3456 

timony. 

3457 

3450. 

Hearing — Record   of   evidence 

and  objections. 

3458 

8451. 

Questions     by     members     of 
court. 

Decision  and  penalty. 

Findings — Follow  evidence. 

Finding — On  charge  and  spec- 
ifications. 

Finding — Exceptions  and  sub- 
stitutions. 

Finding — Approval. 

Finding — Approval  by  the 
president. 

Findings — Disapproval. 


CHAPTER   CLXXIV. 


EVIDENCE    GENERAL    RULES. 


Sec. 

3459.  Generally. 

3460.  Rules  of  evidence. 

3461.  Rules     of     evidence  — 

leaf's  rule. 

3462.  Agency    and    identity 

cused. 

3463.  Proof  of  corpus  delicti. 

3464.  Intent— Proof. 

3465.  Relevancy  of  evidence. 
346<6.  Documentary  evidence. 
3467.  Documents — Record   of 

ous  trial. 


Sec. 

3468.  Proof  of  enlistment. 

3469.  Documents — Telegrams. 
Green-    3470.  Degree   of   proof — Reasonable 

doubt, 
of    ac-     3471.  Rank  of  officer — Effect  on  evi- 
dence. 

3472.  Opinion  evidence. 

3473.  Burden  of  proof. 

3474.  Burden  of  proof  never  shifts. 

3475.  Character — Proof  as  to. 
previ-     3476.  Impeachment  of  witness. 

3477.  Depositions. 


TABLE    OF    COXTEN'TS. 


XXIU 


CHAPTER  CLXXV. 


EVIDENCE   IN   PARTICULAR   CASES. 


Sec. 

Sec. 

3478. 

Absence  without  leave. 

3488. 

3479. 

Burglary. 

3480. 

Conduct   to   the    prejudice    of 

3489. 

good  order  and  discipline. 

3490. 

3481. 

Conduct    to    the    prejudice    of 

good   order  —  Member   of 

3491. 

court-martial. 

3492. 

3482. 

Conduct   to   the    prejudice    of 

3493. 

good  order — On  part  of  offi- 

3494. 

cers. 

3495. 

3483. 

Conduct    to    the    prejudice    of 
good  order — On  part  of  sol- 

3496. 

diers. 

3497. 

3484. 

Conduct    unbecoming   an    offi- 

3498. 

cer,  etc. 

3499. 

3485. 

Desertion — Proof. 

3500. 

3486. 

Desertion  —  Absence     without 

3501. 

leave. 

3502. 

3487. 

Desertion — Penalty. 

3503. 

Desertion — E  nlistment  in 
enemy's  army. 

Desertion — Escape. 

Desertion  —  Pay  and  forfei- 
tures. 

Desertion — Defense. 

Desertion — Reward  for  arrest. 

Drunkenness  while  on  duty. 

Drunkenness — Proof. 

Embezzlement. 

Embezzlement — P  roof  and 
presumption. 

Enlistment — Proof. 

Fraudulent  claims. 

Mutiny — Proof. 

Mutiny — Intent. 

Mutiny — Suppression. 

Relieving  the  enemy. 

Sleeping  on  post. 


TABLE  OF  CASES. 


^References  are  to  Sections.'\ 


A.  D.  Patchln,  The 

3363 

3364 

3365 

A.  R.  Wetmore,  The 

3383 

A.  Demerest,  The 

3395 

A  Lot   of  Whalebone 

3354 

3360 

A.  Kossiter,   The 

3389 

Abbott  V.  Abbott 

3213 

V.  Alsdorf 

3183 

V.   People 

2975, 

2980 

3038 

Abby,  The 

3246 

Aberdeen,  The 

3351 

Abernethy  v.   Commonwealth 

3024 

3035 

Able  V.  Commonwealth 

2772 

2774 

2775 

Abrams  v.  Foshee 

2758 

2759 

V.   Winshup 

3212 

Achey  v.  State 

2717 

Achterberg  v.  State 

2714 

Acker  v.  Leland 

3177 

Ackerson  v.  People 

2727 

Ackley  v.  People 

2721 

Acme  Fertilizer  Co.  v. 

State 

3060 

Ada,  The 

3293 

Adams  v.  Adams 

3199 

3202 

V.  Claxton 

3231 

V.   Island   City,   The 

3350, 

3352. 

3361 

3363 

V.   Sophia,  The 

3306 

V.   State            2732, 

2910, 

3020, 

3024, 

3053, 

3077, 

3114, 

3172a 

V.  Waggoner 

2848 

Adelaide,   The 

3330 

Adeline,  The         3250, 

3255, 

3263, 

3318, 

3320 

3325 

3332 

Adkin  v.  Pillen 

3172 

Adkisson  v.  Dent 

3235 

Adler  v.  Fenton 

2920 

Admiral  Keppel's  Case 

3472 

Admiral   Schley,  The 

3380 

Adula,  The 

3324 

3332. 

3335 

^tna  Ins.  Co.  v.  Commonwealth 

2927 

Agee  V.  State 

2987 

2998 

Agnes   I.    Grace,   The 

3362, 

3363 

Agnew  V.  Whitney 

3227 

Ahl's  Appeal 

3212 

Aikenhead's  Case 

2891 

Aitchison  v.  Aitchison 

2792 

Akaba,   The 

3354 

Alabama,  The         3244 

3251, 

3372, 

3374 

Alauson  Sumner,  The 

3266 

Albany.  The 

3355 

Alberta,  The 

3389 

Alberty  v.  T'nited  States 

2724, 

3041a 

Albin  V.  State 

2733 

Albion,  The 

3352 

Albritlon  v.  State 

2774 

Aldrich  v.  People 

3119 

V.   State 

2970 

Alderman  v.  People 

2924, 

2925, 

2928, 

2929, 

293.3 

Alert,  The 

3363 

Alexander  v.  State 

2915, 

3000, 

3007, 

3042, 

3054, 

3057 

Alexander's  Cotton  3502 

Alfele  V.  Wright  3053 

Algitha.  The  3351,  3366 

Alice  Blanchard.  The  3293 

Allegheny  Co.  v.  Zimmerman  3067 

Allen  V.   Board  of  Chosen  Freehold- 
ers 3067 
V.   Flood  2951 
V.  O'Donald  3199 
V.  State           2703,  2785,  2787,  2806, 
2914,  3036,   3065 
V.  United  States                  2724,  3041a 
Allgood  V.  State                            2988,  2991 
Alliance.  The                                               3332 
Allison  V.  United  States                        3041 
Almatia.   The                    3293,  3296,   3300 
Alps,  The                                                    3296 
Amanda  Powell,  The                               3367 
Amelia.  The                                                  3258 
America,  The                      3251,  3372,  3395 
American  Ins.  Co.  v.  Canter                 3244 
American    Saddle   Co.   v.    Hogg            3217 
American    &c.    Bank    v.    Gueder    &c. 

Mfg.  Co.  2964 

American  &c.  Co.  v.  Pollard  3235 

American  &c.  Ins.  Co.  v.  State  2951 

Ames    V.    New    Jersey    ITranklinite 

Co.  3195 

Amiable  Isabella,  The    3322,  3329.  3331, 

3332,  3337 

Amos  V.  Commonwealth  3041a 

Amoskeag  &c.   Co.   v.   John   Adams, 

The  3379 

Andersen  v.   United  States       3043,  3046 

Anderson,  Ex  parte  3497 

Anderson    v.    Bank    &c.  3289 

V.  Commonwealth  2739,  3141 

V.   Edam,   The  3351,   3352 

V.   Henderson  3235 

V.   Jett  2920 

V.  Northrop  3213,  3214 

V.  State     2708.  2724.  2778,  2844, 

2845,  2856.  2'.t(i!t,  ;;(i(i9,  3036,  3046, 

3071,  3077,  3u;i,{,  .■;(i:t7,  3101,  3103, 

3110,  3112,  3153,  3170 

V.  Whalley  3314 

Andre  v.  State  2753,  2755,  2757.  3143, 

3146,  '3152 

Andrew  v.  New  York  Bible  &c.  Soc. 

2889,   2891 
Andrews  v.  Farnham  3213 

V.   People  3114,  3119 

V.  Wall  3270 

Anglia,  The  3346,  3347 

Ann.    The  3323 

Ann  Green.  The  3332 

Ann  L.  Eockwood,  The     3355,  3357,  3358 
Anna,   The  3333 

Anna   Maria,  The  3320 

Anne,  The  3263,  3321,  333(> 


XXV 


XXVl 


TABLE    OF    CASES. 


[References  are  to  Sections.'\ 


Annie  Henderson 

3360 

Annie  M.  Small,  The 

3308 

Ansley  v.   State 

2999 

Ausman  v.   Veal 

3172a 

Anson  v.  People 

2994 

Ant,  The 

3372, 

3380 

Antrim's  Case 

3423 

Apnlion,  The 

3257 

Appleton  V.   State 

3043 

Applewhite  v.  Foxworth 

3202 

Aquila,  The 

3358 

ArabiMIa.  The 

3332, 

.3338 

Archer  v.  State     2786, 

2936, 

2938. 

2939 

Arcia  v.  State 

2714, 

3115 

Argus.    The 

3382 

Ariadne,   The         3251, 

3342, 

3375, 

3381 

Aries.  The 

3347 

Armitage  v.  State 

2960, 

2993 

Armor  v.  State 

2729 

Armstead  v.  State 

2934. 

2939 

Armstrong  v.   People 

3148, 

3149, 

3151, 
3152 

V.   Ross 

3213 

V.   Scott 

3199 

V.   State 

2777 

3009 

3139 

Arnold  v.  Blackwell 

3230 

V.  Cost 

2985 

2997 

V.   Flattery 

3066 

V.   Sinclair 

3177 

V.   Slaughter 

3226 

State  2780,  2863,  2869,  3129 

Aron  V.  Wausau  3123 

Arter  v.  Chapman  3226 

Arthur,   The  3330,   3346,  3347,  3353 

Arthur  M.  Palmer,  The  3381 

Arthur  v.  Oakes  2951 

Ashbrook  v.  Commonwealth  3064 

Ashford  V.  State  2910,  2914 

Ashley  v.   State 
Ashmead  v.  Colby 
Ashworth  v.  State 
Askew  V. State 
Astley  V.  Astley 
Asp  V.  Warren 
Aszman  v.  State 
Atchison  v.  State 
Athenian,   The 
Atkins  V.  Fibre  &c.  Co. 

V.   State 
Atkinson  v.  Plumb 
Atlanta,  The 


3170 
3217,  3230 

3172 
3041a 

2794 

3234 
2729,  2733 
3086,  3091 

3359 

3255 
2726,  3041 

3216 
3346,  3347,  3309 


Atlantic,    The  3292 

Atlantic  &c.  Ins.  Co.   v.  Wilson  3199 

Atlas,  The  3244,  3251,  3374 

Atlas  &c.  Co.  V.  Colon,  The  3359 

Atlee  V.   Packet  Co.  3251,  3372 

Atterberry   v.    State  2820,   3049 

Attorney-General   v.  Cohoes  Co.  3067 

V.  Delaware  &c.   R.   Co.  3067 

V.  Gaskill  3195 

V.   Jamaica  Pond  &c.  Co.  3067 

V.   New  .Tersey   R.  Co.  3067 

Atwood  V.  Cornwall  2959 

V.   Harrison  8197 

V.   Shenandoah  Val.  R.  Co.  3223,  3225 

Audlev's  Case  3093 

Aultfather   v.    State  3171 

Aurania  and  Republic,  The  3377 

Aurora,  The  3324,  3343 

Austin  V.  Chambers  32]  4 

V.   Commonwealth  3036 

V.   State  3014 

Anstine  v.  People  3093 

Australia.  The       3273,  3280,   3281,   3293 

Autrey  v.  Cannon  310S 

Averv   V.   State  2934 

Avoca,     The  3351,    3352 

Aver  V.  Messer  3199 

Aztecs,  The  3351 


B 

B.  B.  Saunders,  The 

3375 

B.  C.  Terry,  The 

3357 

B  and  C,  The 

3372 

Babbitt  v.  Dotten 

3213 

Babcock  v.   Carter 

3217 

V.   People 

2980, 

2982, 

3035 

Baccio  V.  People 

3099 

Bachellor  v.  State 

3000 

Bachelor  v.  Nelson 

3196 

Bacon  v.  State 

2721 

Bags   of   Linseed 

3240 

Baigorry,  The 

3323, 

3324 

Bailey  v.   Commonwealth 

3000, 

3093. 

3166 

V.  Myrick 

3226, 

3227 

V.  O'Bannon 

3193 

V.   State            2731, 

2797, 

3014, 

3015, 

3035,  3054,  3056, 

30.58. 

3101. 

3113, 

3141, 

3150, 

3151, 

3152 

V.  Warden 

3426 

Bain  v.  State 

3095 

3171 

Bainbridge  v.   State 

2720, 

2731 

Baker,  The 

3354, 

3360 

Baker  v.  Ilemenway 

3355 

V.  Mayo 

3232 

V.   Safe  Deposit  &c 

Co. 

3175 

V.   State          2941, 

2944. 

2984. 

3042. 

3059 

,  3115 

3169 

V.  Pnited   States 

2792 

V.   Williamson 

3205 

Baker  &c.  Co.  v.  Excelsior,  The 

3355 

Balchen  v.  Crawford 

3206 

Baldez  v.  State 

2709 

Ball  V.  Townsend 

3197 

V.   T'nited   States 

27.30 

Ballard  v.   Lippman 

3222 

V.   McMillan 

3221 

V.   White 

3233 

Ballow  V.  State 

3057 

Baltic  Merchant,  The 

3303, 

3304, 

3308, 

3369, 

3379 

Baltimore  &c.  Tpk.  Road  v.  State 

3064 

Baltimore  &c.  Co.  v.  V 

'illiams 

3221 

Bank  v.   Fenwell 

3220 

V.   Jefferson 

3211 

Bank  of  Union  v.  Nickell 

3231 

Banks  v.  State 

2804 

3052 

Bankus  v.   State 

3122, 

3127 

Bannen  v.  State 

3107 

Bannon  v.    Overton 

3231 

Barber  v.   Lockwood 

3272 

V.   People 

2862 

2874 

V.   State 

2866 

Barbour  v.  Commonwealth 

3029 

Barfleld  v.  Kelly 

3196 

V.   State 

2996 

Barker  v.  Commonwealth 

3141, 

3142. 

.",152 

V.   Rav 

3174 

3175 

V.   State 

3092 

Barlow  v.  State 

3172 

Barnaby  v.  State 

3009 

Barnebee  v.  Beckley 

3218 

Barnegat.  The 

3355 

Barnes  v.  Haynes 

3218 

v.   State           3100, 

3101. 

3103. 

3105, 

3141 

,  3145 

3151 

V.   Stuart 

3175 

Barnett   v.    State 

2849, 

3099. 

3102. 

3105 

3107 

Barnum  v.  Barnum 

3235 

V.   State 

2996 

Barnwell  v.  Marion 

3220 

Baron  Holberg.   The 

3382 

Barr  v.  Essex  &c.  Council 

2951 

V.   Haseldon 
V.   People 

3211 

2727 

TABLE    OF    CASES. 


XXV 11 


[References  are  to  Sections.'] 


Barrague  v.  Slter 
Barrara   v.    State 
Barrett  v.  Crane 
V.   Hopkins 
V.   Sargcant 


3199 
2785,  li78G 
3424 
3426 
3214 


Barron  v.^Mayor  of  Baltimore  3431 

V.   State  ;-!l-^ 

Barrow  v.   Rhinelander  3196 

Bartender   v.    State  3010 

Barth  v.  Rosenfeld  3176 

Barthelemy  v.  People  3169 

Bartlett  v.  Gale  3199 

V.   State  2979 

Bartley,  The  •■53o2 

Bartley  v.  State  2964 
Barton  v.   Baltimore  &c.  Alliance     3200 

V.  Barton  3199 

V.   State  3166 

Bartow  v.  People  2965,  2972 

Barwis  v.   Keppel  3426 

Bashaw  v.  State  2863 

Bass  V.  State  3037,  3093 

Bassett  v.  United  States  2874 

Bast  V.  Bast  2792 

Basve  V.   State                  3027,  3039,  3041 

Batavier,  The  3389 

Bate  &c.  Co.  v.  Gillette  3221 

Bateman  v.   Burge  3066 

Bates   V.   State  2984 

Bateson  v.  State  3033 

Batten  v.  State     2724,  3025,  3027,  3029 

Baurle  v.  Long  3221 
Baxter  v.   New  York  &c.  R.  Co.          3193 

V.   People                     2777,  2778,    2781 

Bay  of  Naples,  The  3360 

Bayntun  v.   Cattle  2897 

Beach  v.  Fulton  Bank  3212 

V.   Hancock     2829,  2831,  2832,   2S33. 

2834 

V.   State  3087,  3089 

Beaconsfield.  The  3355 

Beals  V.   Illinois  &c.  R.  Co.  3201 

Beamer  v.   Morrison  3209 

Bean  v.  People       3092,  3093,  3097,  3104 

V.   State  2785 

Beard  v.  Green  3234 

V.   State                          2732,  3063.   3065 

V.  United    States  3041a 

Bearse  v.  Three  Hundred  and  Forty 

Pigs  Copper  3363 

Beaslev  v.  People  2771 

V.   State  2729,  3166 

Beatson  v.   Skene  3288 

Beatty  v.  State  3056 

Beaty  v.  State  2962,  2972 

Beaven  v.  Commonwealth  2747 

Beavers  v.  State  3046 

Becherdass  Ambaidass,  The  3298 

Beck  V.  Railway  &c.  Union  2929 

V.   Team.sters'   &c.   Union  2931,   2951 

Becker  v.    Saginaw  Cir.   Judge  3183 

Bedford  v.  State  3020 

Bcdgood  V.  State  3101 

Bee.  The  3319,  3357 

Beebe  v.  Knapp  2938 

Beech  v.   Haynes  3193,  3201 

Beeche  Dene.   The  3269 

Beers  v.  Botsford  3213 

Beggs  V.   State                  2859,  2860,  2864 

Belcher  v.  State  2942 

Belden  v.    Chase  3375.   3376 

Belfast,  The  3240 

Bell  V.  Farmers'  &c.  Bank  3201 

V.   Mallory  3127 

V.   Norwich  2999 

V.   Sennefif  3070 

V.  State            2723.  2828,  2889.  2804. 

2990.   2994,   2999,  3011,  3068 

V.  Woodward  3175 


Bell's  Case 
Belle.  The 

Bellerophon.  IL  M.   S. 
Bellows  V.  Stone 
Helo   V.    Wren 
Belt  V.   Spaulding 
Ben   V.   State 
Benbow  v.   I^ow 
Benedict  v.   State 
Benitu  Kstenger,  The 
Bennefleld  v.  State 


2889 
3271 
3288 
3201,  3203.  3213 
3169 

2758,  2759 
3038 
3214 
3035 

3323,  3327 
3172 


Bennett    v.    Massachusetts    &c.    Ins. 

Co.  3215 

V.  People  3119 

V.   State  2727,  3059a 

V.   Welch  3178,  319« 

Benson  v.  Keller  3213 

V.   Le  Roy  3216 

V.   State  3167 

V.   Woolverton  3199 

Benstine  v.   State  3099,  3101 

Benter  v.   Patch  3216 

Bentley  v.  Davidson  3175 

V.   State  3001 

Benton  v.  State  3169 

V.   Whitney  3296 

Berckmans  v.   Berckmans  2791,   2792 

Bergen  v.  Joseph  Stickney  3367 

V.   People  3168 

Berkeley  v.   Commonwealth  2822,  2823, 

2827 

Berkey  v.  Judd  2717 

Bermuda,  The  3340 

Bernardi   v.    Motteux  3258,  3340 

Bernhardt  v.  State  2729 

Bernie   v.   Vandever  3222 

Bernon,  The  3323 

Berry  v.   Hull  2897 

V.   Montezuma,  The  3271 

V.   Sawyer  3199 

V.  State           2714,  2717,  2732,   2848, 
2913,  2981,  3115 

Bersh   v.    State  2718 

Bertha.  The  3300 

Bessette  v.    State  3094,   3103 

Bessie  Morris,  The  3367 

Betsy.   The  3320,  3335 

Betts  V.  State  3065 

Bevans  v.  Sullivan  3206 

Bewicke  v.  Graham  32S6 

Beyer  v.  People     2738,  2741,  2742,   2744, 

2751 

Bice  V.  State  3101 

Bick  V.  Williams  3175 

Bickerdike  v.  Allen  3199 

Bielschofsky  v.  People  2976 

Hierne  v.  Ray  3200 

Bigelow  V.   Nickerson  3247 

Biggerstaff  v.  Biggerstaff  3177 

V.   Commonwealth  3075,  b090 

Billings  V.  State  3025,   3035 

Bilz  V.  Bilz  3217 

Bindernagle  v.  State  3009,  3065 

Bingham   v.   Cabot  3320 

V.   Yeomans  3199 

Binns  v.  State  3045 

Birch  V.  Mather  3195 

Bird  V.  Commonwealth  2863 

V.   State                      3013,  3059a.  3108 

V.   Styles  3198 

V.   United  States  3036 

Birdsong  v.  State  3114 

Birdwell  v.  State  3024 

Birmingham  Fire  Ins.  Co.  v.  Pulver  2S1G 

Biscoe  V.  Coulter  31 9i) 

Bishop  V.  Bishop  3214 

V.   Ranney  2817.   2822.   2828 

V.   State  2991,  2994,  3014 

V.  United   States  3457 


TABLE   OF    CASES. 


IReferences  are  to  Sections.l 


Bishop  Fisher's  Trial 

3156 

Bissman  v.  State 

3165 

Bivens  v.  State 

3014 

Black  V.  Lamb 

3176 

V.   Louisiana,  The 

3300 

V.   Shreve 

3176 

V.   State 

3046, 

3055 

Blacliburn  v.  State 

3040 

Blaciver  v.  I'hepoe 

3214 

V.   State                         2725, 

2732, 

3059 

Blaclimore  v.  Brider 

3168 

Blaclistone,  The 

3388 

Blaclcwall,  The     3348,  3351, 

3352, 

3354. 
3360 

Blacliwell  v.  State 

3123 

Blades  v.  Higgs 

2857 

Blain  v.  State 

2937 

Blair  v.  Silver  Peals  Mines 

3199 

Blaireau.  The 

3348 

Blaisdell  v.  Bowers 

3205 

Blake,  The 

3296 

Blake  v.  Barnard 

2820, 

2831 

V.   State 

3041a 

V.   Swain 

3194 

Blakeley  v.  State 

2784 

Blakeney  v.   Ferguson 

3206 

Blakey  v.  Johnson 

3175 

Bland  v.  People                 2714, 

2997, 

3167 

Blease  v.  Garlington 

3178, 

3217 

Bledsoe  v.  State 

3001 

Blewett  V.  State 

3000 

Block  V.  Universal  Ins.  Co. 

3195 

Bloom  V.  State 

2714 

Bloomer  v.  State 

2822 

Blossom,  The 

3382 

Blue  V.  Peter 

2944 

Bluflf  V.  State 

2954, 

2955 

Blum  V.  State 

2977 

Bluman  v.  State 

2780, 

2816 

Blunt  V.  Commonwealth 

3056 

Boak  V.  State 

3146 

Board  of  Trustees  &c.  v.  Huston 

3227 

Board  &c.  v.  Casey 

3067 

Bodenhamer  v.  State 

2894 

Bodwell  V.  Heaton 

3216 

Boes  V.  State 

2735, 

2749 

Bogart,  In  re                     3398, 

3419, 

3421 

Boger  V.  State 

2802 

Bogert  V.  Furman 

3231 

Boggs  V.  State 

2714 

Boggus  V.  State 

2991 

Bohan  v.  Port  Jervis  Gas-L. 

Co. 

3060 

Bohan  v.  Commonwealth 

3041a 

Bohn  Mfg.  Co.  v.  Hollis 

2951 

P.oisseau  v.  State 

3166 

Bonner  v.  State 

2719 

Bolckow  V.  Fisher 

3274, 

3278 

Bold  V.  Hutchinson 

3216 

Boles  V.  State 

3140 

Bolivia,  The 

3386 

Boiling  V.  State                3036, 

3043, 

3134 

Bollman,  Fx  parte 

3158 

Bolware  v.  Bolware 

3234 

Bolzer  v.  People 

3035 

Bond  V.  Commonwealth 

2811 

V.  State 

3010, 

3038 

V.  Welcomes 

3218 

V.   Worley 

3195 

Bone  V.  State 

3000 

Bonner  v.  State 

2857 

Bonsall  v.  State 

3129 

Boesch  V.  Graff 

3236 

Boone  v.  Chiles 

3213 

Booth  v.  Commonwealth 

3055 

V.   People 

2703 

V.  Wilev 

3212, 

3213 

Bootle  V.  Blundell 

3175 

Booty  in  the  Peninsula 

3347 

Bork  V.  People 

2714, 

2968 

Borrego  v.  Territory 
Boscow  V.  State 
Boskenna  Bay,  The 
Boston,  The  3253,  3259, 

Boston  &c.  Co.  V.  Dana 

Bothnea,  The 

Bothnia,  The 

Botker  v.  Towner 

Bottomley  v.  United  States 

Boulden  v.  Mclntire 

Boutwell  V.  Marr  2920, 

Bow  V.  People  3130, 

Bowe  V.  State 

Bowen,  Ex  parte 
V.   Matheson 
V.   State  2777, 


3264, 
3330, 

3332, 
3370, 

2720, 

2921, 
3134, 


779,  2979, 

Bowers  v.  Cutler 
V.   European,  The 
V.   McGavock 
V.   State  3141,  3146,  3147, 


Bowler  v.  State  2980, 

Bowles  V.  State 

Bowley  v.  Goddard 

Bowlin  V.  State 

Bowling  V.  Commonwealth 

Bowlus  V.  State 

Bowman  v.  O'Reilly 

Boxes  of  Opium  v.  United  States 

Boyce  v.  People  3145,  3146, 

Boyd  V.  Alabama  3011,  3016,  3032, 
Boykin  v.  People 
Boyle  V.  State      3017,  3027,  3030, 

Boyne,  The 

Bovnton  v.  State 

Brabham  v.  State  2877, 

Brace  v.  Evans 

Bracev  v.  State 

Bracken  v.  State  3145,  3150, 

Bradford  v.  People 

V.  State 
Bradley  v.  Chase 

V.   People 

V.   State  3136 

V.  Webb 
Bradshaw  v.  People         2753,  2754 

V.  State 
Brady,  The 
Brady  v.  State 

V.   Yost 
Brainord  v.  Arnold  3213 

Branch  v.  State 

Brandon  v.  Cabiness  3214, 

Brandt  v.  Wheaton 
Brannock  v.  Bouldin 
Branson  v.  Commonwealth 
Brauer  v.  State  3092.  3093,  3104. 
Bray  v.  Atlanta,  The 

V.   State  3099, 

Breakey  v.  Breakey 
Breckenridge  v.  Commonwealth 
Breeze,  The 
Bremen,  The 

Bremmerman  v.  .Jennings 
Brennan  v.  I'eople  2782, 

Brennon  v.  State 
Bressler  v.  I'eople 
Brewer  v.  Browne 

V.   Norcross 

V.   State  2860, 

Brewster  v.  Bours 

V.   Miller 
Brice  v.  Nancy,  The 
Briceland  v.  Commonwealth 
Bridgers  v.  State 


272T 
2978 
3253 
3267, 
3340 
2969 
3335 
3379 
3298 
2955 
2865 
2951 
3139 
3008 
2777 
2951 
3026, 
3045 
32li6 
3360 
320a 
3148, 
3153 
2981 
3041 
3363 
3129 
2785 
3038 
3213 
3328, 
3329 

,  3148 

,  3040 
2706 
3036. 
3169 
3360 
3082 

,  2886 
2951 
2982 

,  3153 
2771 

3172a 
3214 
3069 

,  3139 
3231 

,  2755 
2792 
3383 
2972 
3177 

,  3227 
3172 

,  3216 
3176 
2937 
2725 

3172a 
3299 

,  3100 
2865 
3129 
3368 
3366 
3236 
3101 
3048 
2713 
3217 
3202 
2995 
3176 
2951 
3293 
2727 
2965 


TABLE   OF    CASES. 


XXIX 


[References  are  to  Sections.} 


Bridges  v.  State 

2938 

Hrifjht,  Kx  parte 

3419 

Brig},'s  V.  Commonwealth 

3029 

V.   Neal 

3221 

Britannia,  The 

3375 

British  Empire,  The 

3353, 

3303 

Britt  V.  Bradshaw 

32u:i 

V.   State                         2975 

2981, 

3055 

Brittain  v.  State 

3042 

Brock  V.  ("ommonwealth 

3170 

V.   State 

3145, 

3170 

Brockett  v.  Brockett 

3175 

Brockman  v.  Aulger 

3223 

Brodie  v.  Skelton 

3213 

Brogy  V.  Commonwealth 

3100 

Brokaw  v.  McDougall 

3234 

V.   State 

3059a 

Brooke  v.  I'eople 

2714, 

3052 

Brooklyn,  The 

33.S4 

Brooks  V.  Adams 

3415, 

34  L' 4 

V.   Adirondack,  The 

3359, 

33t;4 

V.   Daniels 

3424 

V.   I'eople 

3i;!() 

V.  State            2918,  3055, 

3068, 

308S, 
3134 

V.  Thomas 

3198 

Brosn  v.  State 

2984 

Brothertou  v.  People 
Bronx  v.  Ivy,  The 
Brow  V.  State 
Brown  v.  Brown 

V.   Bulkley 

V.   Burrows 

V.   Chambers 

V.   <"ommonwealth 
3014,   3015,   3017. 


3204, 


V.  Grove 

V.  Jacobs  &c. 

V.  .lones 

V.  Kendall 

V.  Lull 

V.  McDonald 

V.  People 


2715,  2720, 

3032,  3033, 

3093,  3097,  3041a, 

Co. 


3250, 
2953,  2975,  3045, 


V.   Pickard 

V.   Pierce 

V.  Runals 

V.   State  2722,  2731,  2746, 

2814,  2827,  2913,  2969,  2980, 
3009,  3016,  3017,  3019,  3020, 
3036,  3041a,  3059,  3074,  3077, 
3087,  3089,  3093,  3098,  3135, 
3107,  3170, 

V.   Swann 

V.  Thornton 

V.  Wadsworth 

V.   Worster 
Brownell  v.  People 
Browning  v.  State 
Brownlee  v.  Martin  3175, 

V.   State 
Bruce  V.  Child 
Brucker  v.  State 

Brueggestradt  v.  Ludwig  3234, 

Brnen  v.  People 
Brundage  v.  Deschler 
Bniiier  v.  State 
Bruschke  v.  Furniture  Makers' 

ITnion 
Bryan  v.  Morgan 
Bryant,  In  re 
Bryant  v.  Commonwealth 

V.   Leyland 

V.  State     2822,  2829,  3015, 

Bubster  v.  State 
Buchanan  v.  Alwell 
V.  Kerr 


3310 
3171 
3205 
3205 
3250 
3214 
2K08, 
3044, 
3104 
3218 
2920 
3292 
2836 
3293 
3195 
3050, 
3090 
3193 
3199 
3218 
2756, 
3000, 
3022, 
3079, 
3166, 
3172 
3195 
3253 
3419 
3223 
3039 
2941 
3177 
3100 
321  <i 
30:'.S 
323() 
2916 
3177 
3024 

2951 
3218 
3292 
29S1 
3195 
3018. 
3035 
3054 
321S 
2951 


Buchanan  v.  State  2798,  2799,  2802,  3049 


2777,  2778 
3300 
3199 

3297,  3299 
3058 
2717 

3283,  3286 
3167 
3379 


Buck  V.  Commonwealth 

V.  Lane 

V.   Swazey 
Biicker  v.  Klorkgeter 
Buckine  v.  State 
Buckner  v.  <"ommonwealth 
Budden  v.  Wilkinson 
Budge  v.   I'arsons 
BulTalo,  The 
Buffalo  &c.  Oil  Co.  V.  Standard  Oil 

Co. 
Bulkley  v.  Van  Wyck 
Bull  V.  Colton 
Bulloch  V.  State 
Bullock  V.  Corry 

V.   Koon 

V.   State 
Bun  fill  V.  People 
Bunnel  v.  Stoddard 
Buutain  v.  State 
Burdett  v.  Williams 
Burdge  v.  State 
Burdine  v.  State 
Burgess  v.  State 

V.   Wilkinson 
Burhans  v.  Van  Zandt 
Burke  v.  Davis 

v.   Miller 

V.   State 
Burlington,  The 
Burnett  v.  State  2970,  3001,  3036,  3153 

31  (;8 
Burney  v.  State 
Burr's  Trial 

Burress  v.  Commonwealth 
Burrows  v.  State 
Burst  V.  State 
Burt  V.  Harrah 
State 


29.^)1 
3207 
2.s:;o 
2712,  2719,  2909 
32S9 
3079 
2720,  2972 
2745,  2747 
3217 
2982 
3292 
299."> 
3001 
3043 
3225 
3236 
3191 
2940 
2717,  2718 
3357 


2990, 


2707 
Burton  v.  State    2829,  2831,  2834, 


27S6 

3101 

2998 

2915 

3166 

3218 

3035 

5028, 

3043,   3044 

Busby  V.  Littlefield  3198 

Bush  V.  Sprague  2920 

Bussey  v.  Bussey  3218 

Bustros  V.  White  328."(.   8290 

Butler  V.  Boston  &c.  Co.  3244,   3245 

V.   Catling  3205 

V.  Commonwealth  2937 

V.   State  2705,  2718,   2990,  3075, 

3121 
V.   Wood  27r.9 

Butler  &c.  Co.  v.  Georgia  &c.  R.  Co.  3231 
Butt  V.  Conant  2702 

Butterfleld  v.  Boyd  3367 

Buttram  v.  State  3008 

Buzard  v.  McAnulty  3193 

Bybee  v.  State  2786,   3006 

Byers,  Kx  parte  3246,  3247 

Byington  v.  Wood  3229 

Byrd  v.  Belding  3221 

V.  Commonwealth  3041a 


C.  F.  Sargent.  The 
Cachemirc.  The 
Cadmus,  The,  v.  Matthews 
(^idwell  V.  State 
Calm  v.  State 
Cain  v.  State 
Cairnsmore,  The 
Caldwell  v.  Leiber 


v.   State 

Calkins  v.  Evans 

v.  State 
Call  V.  Perkins 


3299 
33.-)5 
3293 
30<!;{ 
3005 
3000 
3357 
3221 


2731,  2831,  2834.  3023, 

3142,  3153 

3198 

2972 

3183 


XXX 


TABLE    OF    CASES. 


[References  are  to  Sections.] 


Callahan  v.  State 

3141, 

3148, 

3153 

Callan  v.  McDaniel 

3193 

V.   Wilson 

2929, 

2933, 

2951 

Callender  v.  Colegrove 

3235 

Callison  v.  State 

3103 

Calloway  v.  State 

3034 

Calvert  v.  Nickles 

3236 

Calwell  V.  Boyer 

3206 

Camanche,  The     3348, 

3354, 

3361, 

3363, 
3365 

Cambridge.  The 

3260, 

3262, 

3272 

Camden  v.  Stuart 

3236 

Camden  &c.  R.  Co.  v.  Stewart  3214, 

g'^OQ 

Cameron  v.  State 

2802 

Camp  V.  Ingersoll 

3218 

Campbell  v.  Bowles 

3212 

V.  Brackenridge 

3211 

V.  Campbell 

3207 

V.  Patterson 

3198 

V.   People        2708, 

3041a, 

3043, 

3046 

V.   Sliker 

2848 

V.   State 

2971, 

3009, 

3044 

V.  Uncle  Sam,  The 

3259, 

3260 

Canale  v.  People 

2861 

Cancemi  v.  People 

2721 

Cannon  v.  Collins 

3214 

V.   People 

3041 

V.   State 

3017 

V.   United  States 

2870 

Cantee  v.  State 

3165 

Canter  v.  State 

2979 

Cape  Fear  &c.  Co.  v.  Pearsall 

3271 

Cape  Packet,  The 

3366 

Capelli  V.  Dondero 

3216 

Carbonero,  The 

3371, 

3375 

Card  V.  State        2939, 

2941. 

2942, 

2943. 

2944, 

2990, 

2994 

Carew  v.  Rutherford 

2951 

Carey  v.  Williams 

3221 

Cargill  V.  Commonwealth 

2747 

V.   Kountze 

3195 

Cargo  of  The  Edwards 

3348, 

3351 

Carithers  v.  Jarrell 

3206 

Carl,  The 

3393 

Carl   Corper   &c.    Co. 

V.   Minwegen 

&c.  Co. 

2935 

Carlisle  v.  Carlisle 

2792 

V.  Foster 

3175 

V.   State 

2728, 

2982 

V.  United  States 

3163 

Carll  V.  Erastus  Wiman,  The 

.3382 

Carlos  F.  Roses.  The 

3323, 

3327 

Carlton  v.  People 

2707, 

2709. 

2713, 

2726, 

2727 

Carman  v.  Hurd 

3234 

V.  Watson 

3200 

Carneal's  Heirs  v.  Day 

3199 

Carnell  v.  State 

2976, 

2980 

Carney  v.  State     3096, 

3101, 

3144, 

3148 

Caroline.  The 

3263, 

3269 

Carotti  v.  State 

2792, 

2793, 

2795 

Carpenter  v.  People 

2740, 

2745, 

2753 

V.   Providence  &c.  Ins.  Co 

3198 

V.   Schermerhorn 

3235 

V.  Shelden 

2941, 

2942 

V.   State 

3024 

Carr  v.  State        2836, 

2969, 

2999. 

3043. 

3045, 

3166 

Carradine  v.  Carradine 

3176 

Carrie,  The 

3355 

Carrington  v.  Taylor 

2833 

Carroll,  The 

3377, 

3378, 

3379 

Carroll  v.  Deimel 

3175 

V.  People 

3054 

V.   State             2784, 

2817, 

3026, 

3166 

Cartee  v.  Spence 

3223 

Carter.    In   re 

3484 

Carter  v.  Carter 

3176 

V.  McClaughry 

3495 

2709, 


2802, 
Cellonite  Mfg. 


Carter  v.  Privatt 

V.  Roberts 

V.   State  2717,  2721,  3022, 

Cartwright  v.  McGown  2861, 

Carver  v.  People  2990, 

v.   Pinto  Leite 

V.  United  States 
Cary  v.  Herrin 
Case  V.  State 
Casey  v.  State 

V.   Typographical  Union 
Cashin  v.  Craddock  3274,  3283, 

easily  v.  State 
Caskey  v.  Commonwealth 
Castillo  v.  State    2735,  2736,  2739, 
Castleberry  v.   State 
Catalina,  The  3350, 

Cathcart  v.  Commonwealth 
Catherine,  The,  v.  Dickinson    3251, 
3380, 
Catherine  of  Dover 
Cato  V.  State 
Caton  V.  Raber 
Caujolle  V.  Ferric 
Causey  v.  State 
Cavender  v.  State 
Caw  V.  I'eople 
Cawley  v.  Cawley 

V.   State 
Cayford's  Case 
Celluloid  Mfg.  Co. 

Co. 
Celt,  The 

Central   Trust   Co.   v.   Georgia   Pac. 
R.  Co.  3191, 

V.   Marietta  &c.  R.  Co. 

V.  Richmond  &c.  R.  Co. 
Centurion,  The 
Chahoon  v.  Commonwealth 
Chalk  v.  State  2719, 

Chamberlain  v.  Ward  3251, 

Chambers  v.  Cochran 

V.   Jennings 

V.   I'orter 

V.   State  2725, 

V.   Warren 
Champlin  v.  Memphis  &c.  R.  Co. 
Chandler  v.  Herrick 

V.   Iveale 

V.   State 
Chapin  v.  Coleman 
Chaplin  v.  Lee 
Chapman  v.  Cooper 

v.   Engines  of  Greenpoint    3361, 

V.   Lee 

V.   State  2786,  2822,  2830. 

Chappel  V.  State  2727, 

Charge  to  Grand  .Tury  3156, 

Charitable  Co.   v.  Sutton 
Charlotte.  The  3355,  3356, 

Charles  L.  Jeffrey.  The 
Charles  Morgan.  The  3263, 

Charles  E.  Soper.  The 
Chase  v.  Manhardt 

V.   People 
Cheaney  v.  State 
Cheek  v.  Commonwealth 

V.   State 
Cheeseman  v.  Two  Ferry  Boats 
Cheesum  v.  State  2999, 

Chelsey  v.  State 

Cherokee,  The        3346.  3347,  3367, 
Cherrv  v.  Belcher 
Cheshire,  The 
Chesterfield  v.  Janssen 
rhiohester  v.  Chichester 
Chicknsaw.  The  3369,  3379, 

Childe  Harold.  The  3296,  3311, 

Childers  v.  State  2786, 


3324, 


3235 

3419 

3068 
2862 
2994 
3195 
3032 
3236 
3050 
3171 
1.'951 
3288 
2982 
3036 
3098 
3121 
3354 
2723 
3372. 
3391 
3367 
2829 
3213 
2862 
3049 
2918 
3030 
3234 
3040 
2863 

3229 
3372 

3234 
3225 
3225 
3363 
2990 
3014 
3380 
3178 
3397 
2848 
3059 
3205 
3235 
3214 
3196 
2822 
3206 
2964 
2867 
3364 
3195 
2831 
3172 
3164 
3217 
3359 
3370 
3268 
3366 
3206 
2728 
3141 
2099 
3042 
3355 
3006 
3014 
3369 
3200 
3332 
3216 
3212 
3383 
3310 
3038 


TABLE   OF    CASES. 


XXXI 


IBeferences  are  to  Sections.'] 


Childress  v.  State 

2807, 

2808 

Coates  V.  People 

2781 

China,  The 

3244 

V. 

state 

2914, 

3092 

Chipman  v.  People 

3171 

Cobb 

V.  State 

3114 

Chitister  v.  State 

2709. 

2784 

Coble 

V.  State 

2720, 

3137 

Chrisman  v.  State 

2729, 

3015 

Cobleigh  v.  McBride 

:;i7() 

Christian  v.  State 

3166 

Cochran  v.  Blout 

.•;iT4 

Christie  v.  Bishop 

3206 

V. 

Couper 

:ji97 

Christina,  The 

3292 

V. 

State 

3007 

Church  V.  llubbart 

3258 

Cocke 

V.  Trotter 

3199 

Cimiotti  &c.  Co.  v.  Bowsky 

3234 

Cock< 

rell  V.  State 

3026 

Ciocci  V.  Ciocci 

2794 

("ocki 

ill    V.    Commonwealth 

3041a 

Circassian,  The 

3266 

Coffee  V.  State 

3166 

Citizens'  Nat.  Bank  v.  Judy 

3216 

Coffin 

V.  Jenkins 

3267 

Citto.  The 

3323 

V. 

John  Shaw,  The 

3363 

City  of  Antwerp,  The 

3376, 

3378 

Ctpur 

d'Aleue  &c.   Co. 

V.   Miners' 

City  of  Carlisle.  The 

3312, 

3314 

T'nion 

2951 

City  of  Hartford,  The 

3251 

Cognac,  The 

3250 

City  of  London,  The 

3367 

Cohen  v.  State 

3000, 

3007, 

3120 

City  of  Mexico,  The 

3292 

Coker 

V.  State 

3041 

City  of  New  Orleans,  The 

3263 

Colbe 

rt  V.  State 

2979 

City  of  New  York,  The  3367, 

3371, 

3386. 

Coldiron  v.  Asheville  &c.  Co. 

3198 

3387, 

3389 

Cole  V.  Bean 

3175 

City  of  Panama,  The 

3388 

V. 

Shetterly 

3199 

City  of  Peking,  The 

3379 

V. 

State 

2929, 

3014, 

3141 

City  of  Rome.  The 

3251 

V. 

Turner 

2836 

City  of  Springfield,  The 

3377 

V. 

United  States 

3337 

City  of  Washington,  The 

3156, 

3395 

Coleman,  The 

3262 

City  of  \yorcester,  The 

3360 

Coleman  v.  Harriett.  The 

3310 

Civilta,  The 

3251 

V. 

People 

2720, 

3118 

Clackner  v.  State 

3059 

V. 

Ross 

3199 

Clapp  V.  State 

2720, 

2785 

V. 

State             2709, 

2714, 

2910. 

3166 

Clara  v.  People 

2713 

Collier  v.  State 

3167 

Clare  v.  Providence  &c.  Co. 

3386, 

3389 

Collins  V.  Commonwealth 

2723, 

2931 

Clarion,  The 

3372 

V. 

Fort  Wayne,  The 

3363 

Clark  V.  Bailey 

3205 

V. 

Jackson 

3224 

V.   Bradstreet 

3095 

V. 

Lean 

301 1 

V.  Downing 

2822, 

2836 

V. 

State            2797, 

2938. 

2939, 

2941. 

V.   Hackett 

3198 

3114, 

3172a 

V.  Knox 

3229 

V. 

Wheeler 

3310 

V.   State            2725,  2808, 

3004, 

3053, 
3059 

Colorado.  The 
Colquit  V.  State 

3378. 

3380. 

3389 
3037 

V.  Willoughby 

3233, 

3234 

Columbian,  The 

3.371. 

3375. 

3378 

Clark,  In  re 

3181 

Columbian    &c.    Co.    v. 

Mercantile 

Clarke  v.  Dodge  Healy,  The 

3271 

Trust  &c.  Co. 

3221 

V.   New  Jersey  &c.  Co. 

3241, 

3255 

Combs  V.  Boswell 

3199 

V.   Saxon 

3217 

V. 

("ommonwealth 

3030 

V.   State 

3001, 

3044 

V. 

Tarlton 

3199 

V.  Turton 

3214 

Comet.  The 

3380 

V.  Van  liiemsdyk 

3199, 

3206 

Comly  V.  Waters 

2176 

Clarkson  v.  lloyt 

3218 

Commerce,  The 

3240 

Clary  v.  Commonwealth 

2931 

Commercial  Bank  v.  McAuliffe 

3218 

V.   State 

3129 

V. 

Reckless 

3204 

Clawson  v.  State               2939 

2941, 

2943 

Commercial   &c.    Ins.    C 

0.     V. 

Union 

Clay  V.  Towle 

3199 

Mut.   Ins.  Co. 

3199 

Clayton  v.  Wardell 

2863, 

2867 

Commonwealth  v.  Abney 

3066 

Clem  V.  State 

2937, 

3015 

V. 

Adams 

3002. 

3009 

Clement,  The 

3261, 

3382 

V. 

Alburger 

3064 

Clementine  v.  State 

2722, 

30G3 

V. 

Allen 

3093. 

3107 

Clements  v.  Moore 

3201, 

3211 

V. 

Alsop 

2980 

V.   Pearson 

3231 

V. 

Andrews 

2991 

V.   State                         2830, 

3017, 

3129 

V. 

Anthes 

2732 

Clemmitt  v.  Watson 

•2{K,\ 

V. 

Bacon 

2882 

Cleveland  v.  Burnham 

3195 

V. 

Baldwin 

2997 

Cleveland  &c.  Co.  v.   United 

States 

V. 

Bangs 

2759 

Co. 

3214 

V. 

Bargar 

2995 

Click  v.  State 

273.5, 

2736 

V. 

Barnes 

2924 

Clifton,  The 

3349, 

3360 

V. 

Barney 

2963 

Clifton  V.  State 

2915, 

3168 

V. 

Barrows 

2760 

Cline  V.  State 

2729 

V. 

Barry            2972, 

3048, 

3049, 

3056 

Clink  V.  Thurston 

3177 

V. 

Bartilson 

2937 

Clinton  v.  Estes    2921,  2933 

2939, 

2944 

V. 

Bean 

3115 

Cloud  V.  Calhoun 

3201 

V. 

Beckett 

2984 

Cloutman  v.  Tunison       3307 

3308, 

3317 

V. 

Belding 

3066 

Cluck  V.  State        2721,  2729, 

3035, 

3044 

V. 

Bell 

2792 

ClufC  V.  Mutual  &c.  Ins.  Co. 

2818 

V. 

Berry 

2903. 

3123. 

3125 

Clutterbuck  v.  Coffin 

3305 

V. 

Betton 

2808, 

2809, 

2816 

Clyde  V.  Richmond  &c.  Co. 

3177 

V. 

Bigelow 

2954. 

2955. 

2960 

Coast  &c.  Co.  V.  Phoenix  Ins. 

Co. 

3348. 

V. 

Billings 

3114, 

3117 

3360 

V. 

Birriblo 

3020 

xxxu 


TABLE   OF    CASES. 


IBeferences  are  to  Sections.l 


Commonwealth  v.  Bishop 
V.   Blackburn 
V.   Klackington 
V.  Blair 
V.   Blaisdell 
V.   Blanding 
V.   Bliss 
V.   Blodgett 
V.   Blood 
V.   Bonner 
V.  Booker 
V.   Boston 
V.   Bowers 
V.   Boyer 
V.  Boynton 

V.   Bradford      2718,  2806, 
V.   Bragg 
V.  Brailey 
V.   Breyessee 
V.  Brigham 
V.  Brothers 
V.   Brown 
V.  Brungess 
V.  Buckley 
V.   Burdick 
V.   Burke 
V.   Bush 
V.   Butterick 
V.  Calef 
V.  Call 
V.  Campbell 
V.  Canny 
V.  Caponi 
V.  Cardoze 
V.  Carey 
V.  Castles 
V.  Chilson 
V.  Church 
V.  Clancy 
V.  Clark 
V.  Clary 
V.  Cleary 
V.  Clemmer 
V.  Clifford 


2715,  2782, 


2983, 

2852, 


V.  Cloonen 

V.  Coe 

V.  Coffee 

V.  Coffey 

V.  Coleman 

V.  Cook 

V.  Cooper 

V.  Corkin 

V.  Cornish 

V.  Costello 

V.  Costley 

V.  Cotter 

V.  Cox 

V.  Crossmire 

V.  Crotty 

V.  Crowe 

V.  Cruikshank 

V.  Daley 

V.  Dam 

V.  Dana 

V.  Dascom 

V.  Davenport 

V.  Davidson 

V.  Dean 

V.  Dedham 

V.  Dill 

V.  Dingman 

V.  Donahue 

V.  Donovan 

V.  Dorsey 

V.  Dorus 

V.  Dougherty 

V.  Downing 

V.  Drake 


2791,  2792, 
2963,   2965, 


2976,  2981, 


2707, 


2760 

2948 

3170 

2767 

3066 

3169 

2927,  2946 

2735 

2976,  2980 

3169 

3041 

3064 

2791.   2792 

2873 

2787 

2811,  2813 

3119 

2723 

3041a 

2724 

3170 

2767,  3170 

2824,  2835 

2885,  2887 

2978 

3092,  3096 

2848 

2971 

2795,  2797 

2720,  2978 

3120,  311-'8 

3171 

2866 

3065 

2959,  2997 

2983 

2911 

3067 

2984,  3009 

2855,  3063 

3419 

3039,  3099 

3026 

2794,  2962, 

2972,  3130 

27i:9 

2982,   2984 

3052 

2843 

3007,  3165 

2745,  3019 

2967,  2971 

2720,  2768 

3090 

2995 

2709,  2714 

3170 

3172 

3035,  3036 

2851 

2811 

3049 

2704,   2731 

3065 

3011 

2731 

3065 

2984 

3009 

2969 

2863,  3068 

3059a 

2856 

2899,  2905 

2729 

2883 

2852 

2787 

2767 


Commonwealth  v.  Drass 

V.   Drew  2973,  2975, 

V.   Drum 

V.   Eastman     2924,  2925, 

V.   Edgerly 

V.   Eichar 

V.   Emmons 

V.   Evans 

V.   Farley 

V.   Farren 

V.  Ferrigan 

V.   Ferry 

V.   Finn 

V.   Finnerty 

V.   Fisher 

V.  Flaherty 

V.   Flannelly 

V.   Fleet 

V.   Flynn 

V.   Fogerty 

V.   Follansbee 

V.   Foster 

V.   Fuller  2924, 

V.  Gallagher  2825, 

V.  Galligan 

V.  Gaming  Implements 

V.  Gannett 

V.  Gauvin 

V.  Gazzolo 

V.   Gibney 

V.  Glover 

V.  Goddard 

V.  Coding 

V.  Goldstein 

V.  Goodall 

V.   Goodwin 

V.  Gorman 

V.   Gould 

V.   Grady 

V.  Grant 

V.   Gray 

V.  Green 

V.  Greene 

V.   Grinstead 

V.   Grise 

V.   Hagan 

V.   Hageulock 

V.   Hall 

V.   Ilamer 

V.   Hardin 

V.  Hardy 

V.   Harley 

V.   Harmon 

V.   Harney 

V.   Harrington 

V.   Harris 

V.   Hart 

V.   Ha  r wood 

V.   Haughey 

V.   Hawkins 

V.   Hayden 

V.   Hayes 

V.   Haynes 

V.   Hazelwood 

V.   Henniug 

V.  Henry 

V.   Hershel! 

V.   Held 

V.   Hillenbrand 

V.   Hilliard 

V.   Hodgkins 

V.   Hollis  3093, 

V.   Holmes        2760,  2786, 


2978, 
2938, 
2954, 


2719, 


3050, 


2996, 
2926 
2929 


2722, 


2709,  2811 


2722,  2791, 


3018, 


3079, 
2792: 


2715 
2954 


2722, 


3021, 
2863, 


3068, 
2979,  2982, 


V.  Holt 
V.  Homer 
V.  Hopkins 
V.  Hoskins 


3095, 
3025, 


2802,  2863, 


3008, 
2722, 


3172 
2984 
3019 
2969, 
2976 
2957 
3153 
3010 
3165 
3085 
3165 
3038 
3004 
3114 
3170 
2971 
2704 
3165 
2836 
3139 
3093 
2766 
2997 
2952 
3171 
3170 
3005 
3063 
2813 
3116 
3123 
2914 
2730 
2999 
2807 
3065 
2885 
3011 
3171 
2979 
3080 
2794 
3014 
3053 
2924 
2859 
2912 
2729 
3128 
3170 
3068 
2721 
2984 
3169 
2807 
2714 
3101 
2771 
3065 
2979 
3023 
2871 
2715 
3165 
3052 
2863 
2996 
2980 
2988 
3090 
3038 
3007 
3104 
3035. 
3036 
3165 
2770 
3063 
3038 


TABLE    OF    CASES. 


XXXIU 


IReferences  are  to  Sections.} 


Commonwealth  v.  Hourigan 

V.   Howe  i;976,   2982 

2810 


V.  Hudson 
V.   Hughes 

V.   Hunt  2921,   2925,  2926, 

2929,   2933 
V.   Hurd 
V.   Hussey 

V.   Hitoxicating  Liquors 
V.   Irwin 

V.  .Jaolcson  2720,  2863 

V.   Jeffries        2719,  2975,  2976, 

V.  Jenliins 

V.  Johns 

V.   Johnson  3043, 

V.  Judd  2931, 

V.  Julius 

V.   Kaas 

V.   Kaiser 

V.   Kaniper  2744, 

V.   Karpouski 

V.   Kelly 

V.   Kendall 

V.   Kennard 

V.  Kennedy 

V.   Kenney  2723, 

V.   Kimball  3063, 

V.   King  2963, 

V.   Kingsbury 

V.   Kinney 

V.   Knapp 

V.   Kneeland 

V.  Knight 

V.   Krause 

V.   Kuntz 

V.   Ladd 

V.   Lampton 

V.   Lane 

V.  Langley 

V.  Lannan 

V.   Lawson 

V.  Leisy 

V.  Leonard 

V.  Levy 

V.   Linn 

V.  Littlejohn 

V.  Lockhardt 

V.  Lowrey 

V.  Lucas 

V.  Luckis 

V.   Lufkin 

V.   Lundberg 

V.   Lynn 

V.  Macloon 

V.   Major 

V.  Manley 

V.  Mann 

v.   Manock 

V.   Manson 

V.   INIartin 

V.   ISLash 

V.   Mason 

V.   Matthews 

V.  Maynard 

V.   McCarthy 

V.   McDonald    3064, 

V.    McDuffy 

V.   McGrath 

V.   McKenney 

V.   McKie 

V.   McKisson 

V.   McMahon 

V.   McManus 

V.  McNaugher 

V.   Mead 

V.   Mehan 

V.   Merrill 

V.   Meserve 

Vol.  4  P^lliott 


3036 
3070,  3071 


2721 
2800 
2859 

2720,  3035, 


2866, 

3032, 

2718, 
3093,  3097, 

2706,  2855, 


2924,  2925, 
Ev. — iii 


3044 
,  2984 
,  3026 
3171 
2927, 
,   2951 
2967 
2970 
3170 
2935 
2976 
2980, 
2984 
3120 
3091 
3118 
2946 
3171 
2914 
3046 
2745 
2984 
3133 
3101 
2851 
3043 
2862 
3170 
3050 
2948 
2731 
2778 
2892 
3079 
3044 
,  3072 
2997 
3009 
2873 
2982 
3053 
3033 
2982 
,  3120 
3170 
2894 
,  2801 
3165 
2732 
3049 
3051 
3107 
2980 
2856 
3169 
3170 
2931 
3062 
2802 
2935 
3123 
2871 
3115 
3171 
3070 
2813 
3108 
2982 
2866 
3052 
3023 
2924 
2724 
2732 
3066 
2970 
3170 
2732 
2995 


2962,  2969, 


2792, 


Commonwpalth  v.  Meskill 
V.   Mifflin 
V.   Mika 
V.   Monahan 
V.   Monarch 
V.   Moore 
V.   Morgan 
V.   Morrill 
V.   Morse 
V.   Mosier 
V.   Moulton 
V.   Mullen 
V.   Munson 
V.   Murphy       2716,  2978, 

V.   Murray 

V.   Murtagh 

V.   Xagle 

V.   Nichols  2796, 

V.   IS'ickerson 

V.   Norcross 

V.   Norris 

V.   Northern  Cent.  R.  Co 

V.   O'Brien       2924,  2926 


2972 
2982 
2794 


2804 
3092, 
3106 
2898 


3165, 
2800, 

2948, 


r.  O'Malley 
^   Ordway 
'.   Packard 
'.   I'arker 
'.   I'armenter 
'.   I'assmore 
•.   I'eople 
•.   I'erry 
■.   I'eters 
.  I'etrofif 
.   Phillips 
.   Pierce 
.   I'lace 
.   Pollard 
.   Poots 
.   I'ope 
.   Porter 
.   I'owell 
.   I'ower 
.   I'reece 
.   I'rice 
.   I'urdy 
.   I'utnam 
.  Quinn 

Randall 

Reed 

Riggs 

Riley 

Robinson 

Roby 

Rockafellow 

Roddy 

Rogers 

Rooks 

Rowe 

Rowell 

Rudy 

Ruggles 

Runnels 

Russell 

Ryan 


3122, 
2902, 


3064 

2759,  2764 

2986 


3095 

3071,  3079 
2715, 

2851, 
2954,  2955, 


2810 
2725,  2844, 


2720,  2739 


2714, 

2819, 

3123,   3126, 

0994 

2963,  2~971,' 


V.   Salyards 
V.   Sawtelle 
V.   Schwartz 
V.   Scott 
V.   Searle 
V.   Sharpless 
V.   Shearman 
V.   Shedd 
V.   Sheehan 
V.   Sheets 
V.   Shelton 
V.  Shepherd 


2969, 

2915,  2925, 
2999, 


3171 

2929 
3019 
3091 
3002 
,  2979 
3169 
,  29S4 
2955 
,  2790 
2885 
3117 
3068 
3108, 
3171 
2901 
2863 
3171 
3170 
2739 
2801 
2995 
3066 
2982, 
3171 
2972 
2818 
3170 
3079 
2997 
3066 
2707 
3064 
2730 
2899 
3100 
2984 
3169 
3080 
3120 
2916 
2732 
3070 
,  2852 
2814 
,  2994 
2714 
3170 
,  2811 
2845 
3064 
3052 
2849 
3026 
2731 
2964 
3032 
2728 
3170 
3170 
3165 
3169 
3066 
3127 
2995 
2972, 
3050 
3046 
2972 
2975 
2917 
2990 
3068 
3170 
2926 
3034 
3024 
3000 
2917 


XXXIV 


TABLE   OF    CASES. 


[References  are  to  Sections.'! 


Commonwealth  v.  Slattery  3108 

V.   Smith  2703,   2773,   2944,   -OtlS. 

2969,  2971,  2989,  3003,  30(>r.,   3( •(•.(», 

3074,  rn<;r. 

31t!9 

2726,  2764,  2765,  3172a 

3067 


V.   Snell 
V.   Snelling 
V.   Snow 
V.   Soulas 
V.   Spear 
V.   Spratt 
V.   Squire 
V.   Stambaugh 
V.   Stan- 
V.   Stearns 
V.   Stebbins 
V.   Steimling 
V.   Stevens 
V.   Stevenson 
V.   Stewart 
V.   Stone 
V.   Storti 
V.   Straesser 
V.   Sturtivant 
V.   Siigland 
V.  Talbot 
V.  Taylor 


8165 

2893 

2809 

2931 

2957 

2954 

3052,  3055 

3055 

2997 

2978,   2981 

3063,  3065 

2718,   2975 

3036 

3038 

2720,  3027 

3094,  3109 

2986,   2997 

2759,  2761,  2766,  3000, 

3044 

V.  Tenney  2967.  2971 

V.   Thomas  3172a 

V.  Thompson  2770,  2802,  30-J7, 

3104 
V.  Thurlow  2714 

V.  Tibbetts  2766,  2767 

V.  Timothy  3171 

V.   Titus  3056 

V.  Trefethen  2723 

V.   Trimmer  3053 

V.  Tucker  2808 

V.  Tuckerman  2967,  2969 

V.   Twitchell  3026 

V.  T'pton  3064,  3066 

V.  Van  Stone  3170 

V.  Van  Tuyl  2984 

V.  Vieth  3165 

V    W  2760,  2762,   2765 

V.  Waite  2989,  3165 

V.   Walden  3172 

V.  Walker  2978 

V.  Wallace       2924,  2925,  2926,  2977, 
2978,  3170,  3171 
V.  Ward  2924,  2931.  2946 

V.   Warden  3068 

V.  Warren  2978,  3165 

V.  Waterman  2920,  2931 

V.  Webster       2709,  2713,  2717.  3012. 
3016,  3025,  3043,  3046 
V.  Weiss  2726 

V.  Wells  2999 

V.  Wermouth  2731 

V.   Werutz  2732,  3030,  3042 

V.   Wesley  2715,   2814 

V.   White  2820.  2824,  2832,  2994, 

3056,  3090,  3135,  3140 
V.   Whitman  3167 

V.   Whittaker  2754 

V.  Willard  2787 

V.  Williams     2715,  2914.  2916,  3044. 
3046,  3130,  3170,  3172 
V.  Winnemore  3039 

V.  Wood  2759,  2762,  2764.  2787. 

2978,  2984,  3167 
V.  Woods  2998 

V.  Woodward  2719,  3041 

V.   York  2716,  2717 

V.   Zelt  2706 

Compagnie  Commerciale  De  Trans- 
port &c.  V.  Charente  &c.  Co.  3355 
Compton  V.  State              2874,  3018,  3043 
Comstock  V.  State                                  3092 


3102, 

31 22 

3259' 

3216 

3101, 

3102 

2729 

3199 

2774, 

2937 

3-;51 

3014,  3024, 

.S083 

H30(> 

3016. 

3054 

33V2 

3041a 

3196, 

3221 

Co- 


Mur- 


Coney  v.  State 
Confiscation  Cases,  The, 
Conger  v.  Cotton 
Conkey  v.   People 
Conly  V.  Commonwealth 

v".   Nailer 
Connaughty  v.  State 
Connecticut,  The 
Connell  v.  State 
Connemara,  The 
Conner  v.  State 
Connolly  v.  Ross 
Conraddy  v.  I'eople 
Consequa  v.   Fanning 
Considine  v.  United  States 
Consolidated    Fastener    Co. 

lumbian  &c.  Co. 
Consolidated  Steel  &c.   Co. 

ray 
Constable's  Case 
Constitution.  The 
Continental,  The 
Continental  Ins.  Co.  v.  Board  &c. 
Continental  Nat.  Bank  v.  Ileilman 
Conway  v.  Reed 

V.   State 
Conyers  v.   State 
Cook  V.  Dolan 

V.   State  2703,  2785.  2774, 

2863,  3039,  3040, 

V.   Stevenson 
Cooke  V.  Cooke 

Coolman  v.  State  3014,  3017, 

Coon  v.  Abbott 
Coons  V.  Clirystie 
Cooper  V.  Commonwealth  3054, 

V.   Mc.Tunkin 

V.  State     2731,  2916,  3059, 
3120,  3149, 

V.  Tappan  3201, 

Cope  V.  Dry  Dock  Co 
Copeland  v.  Crane         3199. 

V.  State  3017, 

Copenhagen,  The 
Copp  V.  Decastro  &c.  Co.     3250, 

3114,  3118. 


3077,  3087, 

2852, 

3300, 


3177, 


Copperman  v.  People 

Corbett.  In  re 

Cordway  v.  State 

Corey  v.  People 

Corks  V.  Belle.  The 

Cornelia   Amsden.  The 

Cornelison  v.  Commonwealth 

Cornelius,  The 

Cornelius  v.  Commonwealth 

V.   Grant 
Corrnell,   The 
Cornett  v.  Combs 

V.   Williams 
Corning  v.  Baxter 
Cortez  V.  State 
Corwin  v.  Jonathan  Chase,  The 
Cory  V.  Gertcken 
Costa  Rica,  The 
Costello  V.  State 

Cote  V.  Murphy  2929, 

Cottage  City.   The 
Cotton  V.  State 
Couch  V.  Commonwealth  2742, 

V.   State 

V.   Steel 
Countee  v.  State 
Countess  of  Harcourt 
Countess  of  Lauderdale.  The 
County  of   Harlan  v.   Whitney 
Count'z  V.  Geiger 
Courtenay  v.  Williams 
Courtney  v.  State 
Cowan  V.  Milbourn 


2725 

3185 

2951 
3246 
3314 
3251 
2951 
3195 
2836 
2723 
3010 
2951 
2802, 
3107 
3227 
2792 
3022 
3183 
2951 
3090 
:.'844 
3112, 
31  52 
3215 
3354 
3229 
3038 
3320 
3252. 
3254 
3120 
3420 
3088 
2856 
3367 
3301 
2819 
3324 
3041 
3167 
3395- 
3175 
3419 
3218 
2939 
3359 
3197 
336.3 
3066 
2951 
3356 
2720 
2751 
2997 
3299 
2996 
3296 
3323 
3215 
3204 
3233 
3008- 
2891 


TABLE   OF    CASES. 


XXXV 


[References  are  to  Sections.'] 


Cowan  V.  People  2970,  2981.  2984 

Cox  V.  AlliriKham  .3212 

V.   Commonwealth  2786 

V.    State  2856,   2870,  3009.  .30.30 

Coxwell  V.  State  2778,  3036,  3112 


Coyne  v.  People 

3070 

Crabb  v.  "State 

3170 

Craft  V.  Commonwealth 

^786 

V.   Russell 

3201, 

3211 

V.   Schlag 

3193, 

3199 

Craig,  In  re 

3421 

Craigs,  The 

3348, 

3357 

Craige  v.  Craige 

3214 

Crammer  v.  Fair  American,  The 

3298 

Cranburne's  Trial 

3154 

Crane  v.  People    2789, 

2792, 

2793, 

2795, 
2796 

Crass  V.  State 

2714 

Crawford  v.  Kirksey 

3205 

V.   Moore 

3213 

V.  Osmun 

3232 

V.   State            2702, 

2725, 

2873, 

3009. 

30:;i8, 

3059, 

3059a 

V.  William  Penn 

3261 

Creighton  v.  State 

3146 

Creve  Coeur  &c.  Co.  v. 

Tamm 

3218 

Crew  V.  State 

3108, 

3129 

Crews  V.  State 

2720 

Crichton  v.  People 

2762 

Cridland,  Kx  parte 

3258 

Crislip  V.  Cain 

3236 

Crist  V.  Brashiers 

3196 

Crittenden  v.   State 

2937 

Croarkin  v.  Hutchison 

3198 

Crockett  v.  State 

3033 

Crockford  v.  State 

3059a 

Croglian  v.  State 

3092, 

3141 

Cromwell  v.  Island  City,  The 

3348 

Crook  V.  State 

2780 

Croom  V.  Sugg 

2991 

Crosby  v.  People 

.301.5, 

3017 

Cross  V.  People 

2785, 

2998 

V.   State           3015, 

3099. 

3102, 

3105. 
3172a 

Crossman  v.  Card 

3235 

Crothers  v.  Lee 

3213 

Crouse  v.  State 

3068 

Crow  V.  Jordan 

3095 

V.   State 

2713 

2831, 

2834 

Crowe  V.  Wilson 

3211 

Crum  V.  State 

3050, 

3057 

Crumes  v.  State 

3139 

Crump  V.  Commonwea 

th 

2929. 

2931. 

2951, 

3079 

Crusader.  The 

3263, 

3270 

Crusen  v.  State 

3087 

Crver  v.  State 

3172 

Cuba.  The 

3339 

Culp  V.  State 

3052 

Culver  V.  Culver 

2791 

2794 

V.   State 

2982 

Cumberland  &c.  Co.  v. 

Glass 

Bottle 

&c.  Asso. 

2951 

Cummings  v.  State 

2719 

Cummins,  In  re 

29S2 

Cummins  v.  (Commonwealth 

3049 

V.   Cummins 

3201 

Cunningham  v.  State 

2982, 

3141, 

3144. 

3151 

3152 

Cupps  V.  State 

3019 

3020 

3026 

Cnrby  v.  Territory 

3102 

3108 

Curran  v.  Galen 

2951 

v.   State 

3110 

3113 

Curtis  V.  Hubbard 

2850 

V.   Kirkpatrick 

3175 

V.   State 

L'99<; 

Gushing  v.  Laird 

3  2  SI 

V.   United  States 

3337 

3341 

Cushman  v.  Ryan 

3267 

3280 

3281 

Cutler  V.  State 
V.   Territory 
Cutsinger  v.  Commonwealth 
Cypress,  The 


I).  II.  Miller.  The 
I).  S.  Gregory.  The 
Dabney  v.  State 
I>acey  v.   People 
Dai  ley  v.  State 
Daily  v.  Daily 
Dainese  v.   Hale 
Dains  v.  State 
Dale  v.  McKvers 

v.   State 
Dalzell  V.  Manufacturing  Co. 
Dammaree's  Trial 
Dana  v.  Cosmopolitan  &c.  Co. 
Danenhoffer  v.  State 


2792, 


3015,  ::f018, 

3;'.85, 


Co.   V.   Stonewill 


Danforth  v.  State 
Daniell  v.  Bond 
Dann  v.  Kingdom 
Danner  Land  &c. 

Ins.  Co. 
Dansev  v.  State 
Danville  &c.  R.  Co.  v.  Common 

wpalth 
Darnell  v.  State 
Darrell  v.  Commonwealth 
Darst  V.  People 
Dashiell  v.  Grosvenor 
Dashing  v.  State 
Daub  v.  Englebach 
Davev  v.  Marv  Frost.  The 
David  Dows.  The  3367.   3368 
David  Pratt,  The  3250, 


3391. 
3273, 

3280, 


3038, 
2785 


3259,  3264,  3294, 
2918,  3038, 


271.5. 
3016. 
3092 


2725,  2816, 
3017.  3023. 
3093,  3137 


Davidson  v.  Commonwealth 

v.  People 

V.  State     2719.  2731 

3025,  3026,  3028,  3029,  3037. 

3070,  3073.  3078. 

Davis  V.  Adams  3261, 

v.  Commduwealth   2705,  2871, 

V.   r)avis 

V.   Guilford 

V.   lyeslie 

V.   People 

V.   Schwartz 

V.   State 
2911.   2994. 
3043 

V.  Territory 

V.  United  States 

V.  Zimmerman 
Davison,  In  re 
Davison  v.  People 
Daw  v.  Garrett 

Dawson  v.  State    2720.   2785,  3093, 
Day  V.  Day 

V.   .Tones 
Daylesford.  The 

Davton  Mfg.  Co.  v.  Metal  Polishers' 
&c.  Union  2929, 

Deaderick  v.  Watkins 
I)"Israeli   v.    .Towett 
I)e  Arman  v.  State 
De  Beaumont  v.  Webster 
De  Cock.  The 
De  Haven  v.  State 
De  llihns  v.  Free 
De  Lovio  v.  Boit 
De  Mott  V.  Benson 
Do  Roux  V.  (iirard 
De  Vaux  v.  Salvador 
Dean  v.  Commonwealth  2726,  3026, 


3242, 


2828 
3091 
3166 
3295 


3379 
3389 
3036 
2728 
3065 
2794 
3258 
3020 
3200 
2863 
3212 
3162 
327.> 
2844 
3024 
3287 
2863 

3206 
3170 

3064 

3167 

3104 

.■^122 

3213 

2952 

3193 

335l» 

3392 

3279, 

3281 

31  (!8 

3041 

3006. 

3044. 

3091  )• 

3264 

2873: 

3220' 

321.3; 

3306; 

3041a 
3236 

2910, 

3033, 
3166 

3059a 
2728 
2951 
3421 
3016 
3214 
3172 
2791 
3198- 
3251 

2951 
3211 
3312 
.3024 
3178 
3372 
3008 
3215 
3246 
3230 
3217 
3372 
3027 


XXXVl 


TABLE    OF    CASES. 


[References  are  to  Sections.] 


Debs,  In  re 

2951 

Deer,  The 

3384 

Degenhardt  v.  Heller 

2818, 

2830 

Delin  V.  Mandeville 

2735 

Deimel  v.  Brown 

3198, 

3199 

Deitch  V.  Staub 

3221 

Dejarnette  v.  Commonwealth 

3010 

Del  Col  V.  Arnold 

3320 

Delahoyde  v.  People 

3114, 

3120 

Delambre,  The 

3363 

I»elauey,  Ex  parte 

2890, 

2894, 

2895 

Delano  v.  Winsor 

3198 

Delaware  &c.  R.  Co.  v. 

Bowns 

2951 

Delz  V.  Winfree 

2951 

Demaree  v.  Commonwealth 

3039 

Demartini  v.  Anderson 

3063 

Dement  v.  State 

2952 

Demmick  v.  United  States 

3059a 

Dempsey  v.  People 

3071 

Den  V.  Banta 

3162 

V.  Johnson 

2937 

Denman  v.  State 

3138 

Dennis  v.  State     3001, 

3007. 

3062, 

3064 

Denton  v.  State 

2968, 

2969 

Dentz,  The 

3375 

Detroit  Nat.  Bank  v.  Blodgett 

3175 

Devlin  v.  New  York 

2898 

Devoto  V.  Commonwealth 

3118 

Dewing  v.  Hutton 

3227 

I>exter  v.  Arnold 

3232 

V.  Gordon 

3201 

V.   Munroe 

3272 

Dey  V.  Dunham 

3196 

Diamond  Drill  &c.  Co. 

V.  Kelly 

3217 

Diana.  The 

3338 

Dibble  v.  People 

2718 

Dick  V.  Hamilton 

3206 

V.   State 

3109 

I)ickenson  v.  State 

2838 

Dickey  v.  State 

3001 

Dickinson  v.  Torrey 

3224 

Dickson  v.  State 

3169 

Dictator,  The 

3271 

Diffenderffer  v.  Winder 

3235 

Diggs  V.  State 

2899, 

2905 

Dilcher  v.  State 

2943, 

3080 

Dill  V.  People 

3091 

V.   State 

3129 

Dillin  V.  I'eople 

3044 

Dillingham  v.  State 

3166 

Dinwiddle  v.  State 

3167 

Diomede 

3346, 

3347 

Disco,  The 

3293 

Distilling  &c.  Co.  v.  People 

2951 

Ditzler  v.  State 

2941 

Divina  Pastora,  The 

3269 

Dixon  V.  Cyrus,  The 

3299 

V.   People 

2865, 

2867 

2872 

V.  State 

3035 

3123 

Doan  V.  State 

2913 

Doane  v.  Dunham 

3210 

Dobson  V.  State 

2725 

Dodge  V.  Israel 

3184 

V.   State 

3071 

3095 

Dodwell  V.  Burford 

2836 

Doherty  v.  IloUiday 

2941 

Dole  V.  Erskine 

2848 

Domingues  v.  State 

2829 

Domville  v.  Solly 

3216 

Donohoe  v.  State 

2978 

2981 

2982 

Danahue  v.  Donahue 

2865 

2867 

Donald    v.    Guy 

3379 

Donaldson  v.  State 

2841 

Donnell  v.  Columbian 

Ins.  Co. 

3226 

Donnelley  v.  Territory 

2822 

Donnelly  v.  State 

2770 

Don  Carlos,  The 

3364 

Don  Francisco,  The 

3287 

Don  Moran  v.  People 

3092 

.  3096 

Dooley  v.  State 

Dordrecht,  The 

Doremus  v.  llennessy 

Doris  Eckhoff,  The 

Dorr  V.  Tremont  Nat.  Bank 

Dorsey  v.  Hammond 

V.   State 
Dos  Hermanos,  The  3320, 

Doss  V.  I'eople 

V.   State 

V.  Tyack 
Dotson  V.  State    2859,  2860,  2871, 


3346, 


2975, 
3332, 


3038, 


Dotterer  v.  Saxton 
Dougherty  v.  People 
Douglas  V.  ^lerceles 
Douglass,  The 
Douglass  V.  Eyre  3298,  3307, 

V.   State  3009, 

Dove  V.  State 
Dover  v.  State 
Dow  V.  Spenny 
Dowdell  V.  Carpy 
Dowell  V.  General  Steam  Nav. 
Dowling  V.  Crapo 
Dows  V.  McMichael 
Downey  v.  State 
Doval  V.  State 
Doyle  V.  State 
Drake  v.  State 

V.   Stewart 
Dravo  v.  Fabel 
Drew  V.  State 
Driscoll  V.   I'eople 
Drum  right  v.  State 
Drury  v.  Conner 
Drysdale  v.  Ranger,  The 
Dubose  V.  State 
Duchess  of  Kent,  The 
Duckworth  v.  Tucker 
Dudley  v.  Dudley 
Dudney  v.  State 
Dueber  &c.  Co.  v.  Howard  &c. 
Duffield  V.  Smith 
Duffln  V.  People 
Duffy  V.  People 

V.   State 
Dugan  V.  Bridge  Co. 

V.  Commonwealth 
Dugdale  v.  Reg. 
Duke  of  Manchester,  The 
Duke  V.  State 
Dukes  V.  State 
Dumas  v.  State 
Dumesnil  v.   Dupont 
Dunaway  v.  People 
Dunbar,  Ex  parte 
Dunbar  v.  United  States 
Duncan  v.  Commonwealth 

V.   State 
Dunham  v.  Gates  3203,  3204, 

V.  Jackson 
Dunn  V.  Dunn 

V.  People  2762,  3004. 

V.   State  2718,  2731, 


60,  2763 


3312, 
3123, 

2728, 


Co. 


3038, 
3102, 
3065, 
2921, 


3296, 
3296, 


Co. 
3415, 


2714,  2863, 

3419, 
2731 
3205 


3011 
3026, 


Dunnett  v.  Tomhagen 
Dupont  de  Nemours  v.  Vance  3244, 
3261,  3262,  3263 
Dupree  v.  State 

Dupuy  de  Lome,  The  3355 

Durand  v.  People 
Durant  v.  I'eople 
Durham  v.  United  States 
Durland  v.  United  States 
Dutch  Church  v.  Smock 
Dwight  V.  Pomeroy 
Dyer  v.  People 
V.   State 


3166 
3347 

2951 
3392 
3176 
3235 
3036 
3333 
3056 
3049 
3176 

2964. 
2972 
3224 
3123- 
3230 
3382 
3317 
3128 
3057 
3167 
2991 
2920 
3372 
3153 
3211 
3001 
3041 
3129 
3169 
2938 
3178 
2721 
3134 
3059 
3199 
3300 
2726 
3301 
3320 
3175 
3009 
2951 
3423 
2993 
2732 
3129 
3067 
2732 
3068 
3366 
3169 
3019 
3046 
3069 
3017 
3427 
2707 

.  3172 
3041 

,  3206 
3201 
3176 

,  3032 
3037, 
3099 
3306 
3260, 

,  3272 
3037 

,  3359 
3130 
3111 
3427 
2731 
3234 
3174 
3170 
3102 


TABLE    OF    CASES. 


XXX  VI 1 


[References  are  to  Sections.'] 


Dyer  v.  Williams 
D.vgden,  The 
Dyues  v.  Hoover 


3201,  Slill 

3419,  3425,  342(>. 
3427,  3478 


E 


E.  B.  Ward,  Jr.,  The 

E.  IT.,  The  3351, 

Eads  V.  II.  D.  Bacon  3270, 

Eagle,  Tlie 

Eagle   Wing,   The 

Ealing  Grove,  The 

Earll  V.  I'eople 

Earlv  Times  &c.  Co.  v.  Zeiger 

Earn  well.  The  3259, 

East  Missouri  v.  Horseman 

East  Tennessee  Land  Co.  v.  Leeson 

Easton,  I'x  parte 

Eaton's  Case 

Eberhart  v.  State 

Eberling  v.  State  2735, 

Echols  V.  State 

Eckels  V.   State 

Edens  V.  State 

Edgar  v.  State 

Edgington  v.  T'nited  States 

Edmonds  v.  State  3025,  3049, 

Edmonson  v.  State 

Edsall  v.   Brooks  2876, 

Edward.  The  3263,  3269, 

Edwards  v.  Elliott 

v.  State  2732,  2777,  2999, 

V.   Susan,  The 

v.  Territory 
Edwin  Baxter,  The  3273, 

Edwin  H.  Webster,  The 
Eenrom,  The 
Egan.  In  re 
Egerton  v.  Jones 

V.   Keillv 
Eggart  v.  State      2759,  2761,  2763, 
Eggleston  v.  State 
Egynt,  The  3350,  3354, 

Ehlert  v.  State 
Ebrman  v.  Swiftsure,  The 
Eighmv  V.  People  3077, 

Eiland"  v.   State  3018, 

Eisenlord  v.  Clum 
El  Dorado,  The  3300, 

El  Ravo 
Elder  v.  State 
Eldridge  v.  State 

V.  Turner 
Eleanor.  The 
Eleanora.  The 

Elfrida.  The  3362, 

Eliza  and  Katv,  The 
Elizabeth  Frith,  The        3296,  3308, 
Elizabeth.  The  v.  Bickers 
Elkin  V.   I'eople 
Ella.  The 

Ella  and  Anna,  The        3344,  3345. 
Ella  Constance.  The 
Ella  Warley.  The 
Elliott  V.  Commonwealth 

V.   State 
Ellis  V.  Ellis 

V.   State  2706,  3041,  3093, 

V.  Woods 
Elliston  V.  Hughes 
Ellwood  V.  Walter 
Ellzev  V.  State  2921 

Elmore  v.  State  2724 

Elphicke  v.  White  Line  &c.  Co. 

3363 
Elsebe,  The 


3393 
3352 
3280 
3247 
3370 
3296 
27(1" 
321 S 
32(!0 
2920 
3226 
3240 
2891 
3096 
2741 
2709 
3051 
3108 
3171 
2721 
3051 
3034 
2878 
3308 
3431 

3053, 
3170 
3308 
3046 
3279 
3367 
3341 
3400 
3233 
3221 
2765 
2963 
3360 
3171 
3359 
3087 

3041a 
2863 
3352 
3347 
3168 
2792 
3212 
3314 
3389 
3363 
8333 

,  3311 
3308 
2948 
3346 

,  3316 
3.-!  56 
3:'.4(! 
3050 
2887 
3221 
3099, 
3100 
3204 
3195 
3224 

,  2029 

,  3166 
3353, 

,  3365 
3332 


EIsov  v.  State  2948, 

Elwcll  v.  Martin 

Isly  v.  I'oontz 

Elysville  Mfg.  Co.  v.  Okisko  Co. 

lOmac  V.  Kane 

Embden,  The 

lOmerson  v.  Atwater  320(i. 

v.   Berkley 

v.   State 
I'";mery  v.  Ohio  Candle  Co. 
Eniig,  In  re 
ICmily,  The 
Emily  B.  Souder,  The 
lOiiinia.  The 
I^mnions  v.  State 
i;mory  v.  Collings 

I'mi>r(>ss  3346, 

lOmulous,  The  3355,   3303, 

lOndraught,  The 
lOngland  v.  State 

Enlow  v.  State  3041,   3041a, 

Ennesser  v.  Hudek 
Ennis  v.  Smith 

v.   State  2962, 

Enright,  The 
FInright  v.  Amsden 
Epperson  v.  State  2972, 

Eppinger  v.  Canepa 
Epps  V.  State  3037, 

Erie  R.  Co.  v.  Heath 
Erin,  The 

Erskine  v.  Commonwealth 
Ertz  V.  Produce  Exchange 
Erwin  v.   State 
Espalla  V.  State 
Estes  V.  Carter 

V.   State 
ICstrado,  Ex  parte 
Estrella,  The 
Etna,  The 

Ettinger  v.  Commonwealth 
Eubanks  v.  State 
Euler  V.  Sullivan 
Evans  V.  Evans  2794 

V.  Peonle  2759,  2766, 


2746 
3253 


3198 
2935, 


V.   State  2724,  2779,  2816, 

2840.  2938,   3030 

V.  Winston 
Evanston  v.  Myers 
Eveleth  V.  Crouch 

Everett  v.  State  3025 

Evers  v.  State 
Eversole  v.  .Maull 
Ewell  v.  State 
Ewing  v.  Sandoval  &c.  Co. 
Excelsior,  The  3355 

Exchange  Bank  v.  Russell 
Explorer.  The  3251,  3372 

I'^yler  v.  State 
Isyre  v.  Potter 
i:zell  v.  State 


2990 

32.53 

3175 

3215 

2951 

3323   . 

323(» 

31!l(! 

27:'.! 

2951 

3234 

3382 

3359 

3288 

3000 

3246 

3347 

3364 

3323 

2012 

.3042 

3236 

3258 

2972 

3240 

3226 

3U17 

3214 

3044 

3187 

3355 

2806 

2951 

3041a 
2988 
2703 
3111 
2750 
3319 
3293 
3026 
2999 
3064 

,  3227 
2937. 
2938 
2838. 

,  3043 
3216 
3171 
3174 

,  3027 
2729 
3200 
3168 
3213 

,   3380 
940 

,  3393 
3104 
3213 
3028 


E.    >reyer    Boot    &c.    Co 

berg  Co. 
Eager  v.  State 
Eahnestock  v.  State 
l''ain  v.  Commonwealth 
Fairfield,  The 
Faitoute  v.  Haycock 
Falcon.  The 
I'allin  V.  State 
Falvey  v.  State 
l''anni('.  The 
l''anning  v.  State 
Fanny  Brown,  The 


Shenk- 

3177 

3102 

3044 

304  2 

3357 

3218 

3330,  3332 

3018.  3020 

2918 

3380 

3129 

3348,  3349.  3350, 

3352,  3355 


xxxvm 


TABLE    OF    CASES, 


[References  are  to  Sections.] 


Fanny  Fern,  The 

3368, 

3372 

Fant  V.  Miller 

3204 

Farbach  v.  State 

3171 

Farley  v.  Kittson 

3208, 

3211 

V.   State 

2706. 

2910, 

2913 

Farmers'  Bank  v.  Butterfield 

3177 

V.   Sprigg 

3194 

Farmers'  Loan  &c.  Co. 

V.  Northern 

Pac.  R.  Co. 

2951 

Farmers'  Mut.  Ins.  Assoc,  v. 

Berry 

3220 

Farmers'   &c.  Trust   Co 

.  V.  Central 

Railroad 

3221 

Farnam  v.  Brooks 

3199 

Farnley,  The 

3378 

Farragut,  The 

3375, 

3380, 

3381 

Farrall  v.  State 

3171 

Farrar  v.  Bernheim 

3191 

V.   State 

2824 

3214 
3267 

V.  Campbell 

V.   McKee 

3200 

V.   I'eople 

2776 

V.   State 

2726 

V.   Weitz 

3095 

Farrer  v.  State 

3046 

Farrington  v.  State 

2995 

Farris  v.  Commonwealth 

3018 

V.   I'eople 

2720, 

3026 

Fashion,  The 

3378 

Fashion,  The  v.  Ward 

3259 

Fastbinder  v.  State 

3020 

Fa  licet  t  V.  Mangum 

3226 

Faulk  V.  State 

2731 

Favorita,  The 

3392 

Fay  V.  Commonwealth 

2981 

V.   r>atlev 

3204 

Fehn  v.  State 

3171 

Feister  v.  People 
Felsenthal  v.  State 

2915 

2721 

F'elton  V.  State      3092, 

3096, 

3097, 

3236 

Fenno  v.  Primrose 

3176 

Fenton  v.  Read 

2867 

Fenwick  v.  State 

2719 

Fergusen  v.  State 

2782, 

3128, 

3143, 

3148. 

3152 

Fertich  v.  Michener 

2844 

Fidelity  Ins.  &c.  Co.  v. 

Shenandoah 

Iron  Co. 

3228 

Field  V.  Holland 

3206 

v.   Romero 

3236 

V.   State 

3018 

V.   Wilbur 

3198 

Fielding  v.  State 

3171 

Fields  V.  State 

3020, 

3038, 

3053 

Files  V.  State 

3054 

Financier 

3346 

Finch  V.  State 

3036, 

3043 

Findley  v.  Findley 

3231 

V.   State 

2709 

Finn  v.  Commonwealth 

2954 

Finnegan  v.  Dugan 

3095 

Finney  v.  State 

2859, 

2860, 

2874 

Fire  Damer.  Die 

3320 

First  Nat.  Bank  v.  Simms 

32.35 

Fish  V.  Miller 

3211 

Fisher  v.  Carroll 

3177 

V.   People 

2732 

V.   Ronalds 

3278 

V.   Sibyl,  The 

3348 

V.  State 

2910, 

3127 

Fitch  V.  Stamps 

3206 

V    State 

3015, 

3018 

Fitzgerald  v.  Fitzgerald 

2835 

V.  o'Flaherty 

3193 

V.  State 

2964 

Fizell  V.  State 

3094 

Flagg  V.  Mann 

3217 

Fleener  v.  State  2962, 

2965, 

2969, 

2971, 
2972 

Fleischmann  v.  Stern 

3193 

Fleming  v.  People 

2862 

V.   State 

2815, 

3050, 

3056 

Fletcher  v.   People 

2843 

V.   State 

2721, 

2995 

Flinn  v.  State 

2717 

p-lora  First  Nat.  Bank 

V.  Burkett 

3172 

Flottbek,  The          3350, 

3352, 

3354, 

3355 

Flying  Fish,  The 

3267, 

3323, 

3337 

Flynn  v.  State 

3000 

Foldeu  V.  State 

2997 

Fong  Yuk,  In  re 

3063 

Fonville  v.  State 

2990, 

3044 

Foote  V.  Lefavour 

3196 

V.   Silsby 

3185, 

3223 

Forbes  v.  State 

3065 

Ford  V.   State       2728, 

2732, 

2810, 

2811, 

2836,   2939,  3000, 

3004, 

3011, 

3013, 
3109 

Forest  Hill  &c.  Asso.  v 

.  McEvoy 

3234 

Forman  v.  Commonwea 

1th 

3045 

Forney  v.  Hallacher 

2863 

Forrest  v.  State 

2831 

Forsigheid,  The 

3346. 

3347 

Forsyth  v.  Clark 

3204 

Fort  V.  State 

2786, 

2912 

Fortenberry  v.  State 

2964 

Fortitudo,  The 

3150, 

3250 

Fortuna 

3343 

Fortune  v.  Watkins 

3218 

Fossdahl  v.  State 

3171 

Foster  v.  Commonwealth 

3108 

V.  Ooddard 

3232 

V.   Sampson 

3310 

V.   State            2835, 

3036, 

3059. 

3071. 

3078,  3079, 

3113, 

3230, 

3232 

V.  Thrasher 

2941, 

2942 

Fouts  V.  State 

2939. 

2943 

Fowler  V.  Payne 

3231 

V.   I'eople 

29S0 

V.   State 

2707, 

2732 

Fox  V.  People        2724, 

2990, 

2994, 

2995 

Francia's  Trial 

3164 

Franconia,  The 

3374 

Frank  C.  Barker,  The 

3300 

V.   Herold 

2951 

V.   Lilienfeld 

3206 

Frank's  Appeal 

3175 

Franklin  v.  Greene 

3175 

V.   Meyer 

3221. 

3223 

V.   State 

3059 

Fraser  v.  Burrows 

3287 

Frazee  v.  State 

2999, 

3007 

Frazer  v.  I'eople 

2764 

Frazier  v.  State    2720, 

2917, 

3102, 

3107 

V.   Swain 

3227 

Fred  W.  Chase,  The 

3372 

Freddie  L.  Porter,  The 

3382 

Frederick,  The 

3323 

Freeland  v.  People 

3128 

V.   Wright 

3226 

Freeman  v.  State 

3088 

V.  Tatham 

3193 

Freeny  v.  B'reeny 

3217 

Freiberg  v.  State 

3171 

Fremont,  The 

3383 

French  v.  Gibbs 

3218 

V.   State 

2729 

Friedberg  v.  People 

3114, 

3116 

Friederich  v.  People 

3016 

Friends,  The 

3372 

Frink  V.  Adams 

3198 

Fritzler  v.  Robinson 

3216 

Frost  V.  Rosecrans 

2717 

Frye  v.  Ogle 

3427 

Fryrear  v.  I^awrence 

3199 

Fulcher  v.  State 

2972, 

3054 

Fullagar  v.  Clark 

3216 

Fuller  V.  Fuller 

3234 

TABLE    OF    CASES. 


XXXIX 


[References  are  to  Sections.'] 


Puller  V.  People 
Fulton  V.  State 
V.   Woodman 
Funderburg  v.  State 
Futiderburk  v.  State 
Fuiidy  V.  State 
Fii(]ua  V.  ("onimonwealth 
Funiish  v.  Commonwealth 
Fussoll  V.  State 
Futfh  V.  State 


G 


3071, 


•G.  W.  Jones,  The 
Gabe  v.  State 
Gadson  v.  State 
•Gafford  v.  State 
Gage  V.  Arndt 
Gahagan  v.  People 
Gainer  v.  Russ 
Ciaines  v.  Rroekerhoff 

V.   New  Orleans 

V.   State 
Galbraith  v.  Galbraith 

V.   McCormick 
Galen 

Gallaher  v.  State 
Gallery  v.  State 
Galloway  v.  State 
<Jambetta.  The 
•Gamble  v.  Johnson 
Gamel  v.  State 
Gammell  v.  Skinner 
<5andolfo  v.  State 
Gandy  v.  State      27o0.  3087, 
Gannon  v.  I'eople 
Gantling  v.  State 
Gantt  V.  Cox  &c.  Co. 
Garcia  v.  State 
Gardner  v.  Irvin 

V.   State  2844.  2995, 

Gardom  v.  Woodward 
Garing  v.  Fraser 
Garinger  v.  Palmer 
Garlick  v.  McArthur 
Garlitz  v.  State 
Garmire  v.  State 
Garner  v.  Beaty 

V.   State  2729.  3038, 


3363,  3364, 


2893, 


3330,  3344, 


3015, 
3089, 


3273, 


3089, 
2709, 


3054, 
3038, 


3036. 
2996, 

3040, 


Garnet,  The 
Garrett  v.  Garrett 

V.   Ilansliue 

V.   Mannheimer 

V.   State  2806,  2814, 

Garretson  v.  Clark 
GarrLson  v.  People  2720, 

Garrow  v.  Carpenter 
Garst  V.  State 
•<5arvin  v.  State 
•Garza  v.  State 
■Gaskill  V.  State 
Gasquet  v.  Crescent  City  Brew.  Co, 


3068 
3049 
3198 
2725 
2731 
3045 
3033 
2835 
2715 
3018 


3365 
2952 
3050 
3024 
3227 
2863 
3199 
3235 
3229 
2895 
3198 
3218 
3346 
3128 
3024 
3152 
3360 
3204 
3065 
3279 
3038 
3091 
3043 
3043 
3199 
3059 
3289 
3041 
2717 
2920 
3218 
3211 
3043 
2998 
3226 
3041, 
3050 
3301 
3198 
2989 
2717 
3071 
3191 
3093 
3199 
3170 
2991 
3044 
3172 


■Gass  V.  State 

3231 
2917 

V.   Stinson 

3187, 

3221 

Gassenheimer  v.  State 

3120 

Gates  V.  People 

3044 

Gatlin  v.  State 

2784 

(iaunce  v.  Backhouse 

2935 

Gaunt  V.   State 

3095 

Gavigan  v.  State 

3044 

Gay  Mfg.  Co.  v.  Camp     3191, 

3228, 

3229 

Gayler  v.  Fitzjohn 

3227 

Gaylor  v.  McHenry 

2795, 

3009 

Gazelle  and  Cargo,  The 

3261, 

3272 

Gedney  v.  L'Amistad 

3246 

Gee  V.  Gee 

3216 

Geiger  v.  State 

3034 

Gem,  The 

General  Meade,  The 
Gen.   Whitelocke's  Case 
Generous.  The 
Genesee  Chief  v.  Fitzhugh 
(ienoa 

(lontile  V.  Kennedy 
fientry  v.  State 

George,  The  3334,  3335, 

(Ji'orge  V.  State  3095. 

George  Green  Lumber  Co.  v.  Nutri- 
ment Co. 
George  Home.  The 
George  W.  Clyde,  The 
George  W.   Roby,  The  3380, 

Georgetown,    'J"he  3371, 

Gerard  v.  State 
Geraty  v.  Stern 
Gernon  v.  Boccaline 
Gettinger  v.  State 
Gibson  v.  Jeyes 

V.   State  2860,  2937,  2938. 


Gifford  V.  Kollock 

V.   I'eople 
Gilbert  v.  Mickle 

V.   Mosier 
Gilchrist  v.  Schmidling 
Giles  V.  State 
Gilford  V.  State 
Gilmore  v.  Patterson 

V.   State 
Gill  V.  Bright 

V.   State 
Gillett  V.  Robbins 
Gillum  V.  State 
Girard  &c.  Ins.  Co.  v.  Cooper 
Girdner  v.  Walker 
Girous  V.  State 
Gise  V.  Commonwealth    2859, 
Givan  v.  Masterson 
Givens  v.  Commonwealth 

V.   State 
Gizler  v.  Witzel 
Glackan  v.  Commonwealth 
Gladden  v.  State 
Glascott  V.  Lang 
Glaspie  v.  Keator 
Gleason  &c.  Co.  v.  Hofifman 
Gleghorne  v.  Gleghorne 
Glenewinkel  v.  State 
Glenmanna.  The 
Glenn  v.  Baker 

V.   Grover 
Glos  V.  Cratty 
Glover  v.  People 

V.   State 
Goddard  v.  Leech 
Godwin  v.  State 
Goelz  V.  (ioelz 
Goerke  v.  Rodgers 
Goersen  v.  State 
Goetz  V.  State 
Goforth  V    State 
Goins  V.  State 
Gold  V.  Carter 
Golden  (Jrove.  The 
(Joldinan  v.   State 
Goldsmith  v.  State 
Gold.stein  v.  People 

V.   State 
Gomprecht  v.  State 
(iondolier.  The 
Gonzales  v.  State 
(Joocli  V.  Fnited  States 
Goode  V.  Riley 

V.   T'nited  States 
Goodloe  V.  Dean 
Goodman  v.  Jones 


3308. 
3102, 


914,   2916, 


2921, 


2864. 
3215, 


2903, 


3198. 


2907, 
3018, 


2941, 


2704. 


3106, 


3226, 


3292 
3261 
347-J 
3:^68 
3380 
3347 
3236 
3049 
3336 
3115 

3231 
3292 
3355 
3381 
3377 
2972 
2817 
3208 
3051 
3174 
3021, 
3032 
3309 
3107 
2951 
3211 
2908 
3169 
2723 
3206 
3059 
3050 
2780 
3198 
3026 
3236 
2942 
3046 
2866 
3216 
3102 
2715 
2848 
2978 
3024 
3213 
1^938 
3226 
3201 
3040 
3267 
3206 
3206 
3211 
2720 
2908 
3218 
3021 
3217 
3216 
2718 
3010 
3172 
2943 
3007 
3380 
2732 
3166 
3111 
30(U 
3001 
3296 
3107 
3502 
3215 
2971 
3201 


xl 


TABLE    OF    CASES. 


IReferences  are  to  Sections.'] 


Goodman  v.  Sayers 

V.  State  3113,  3114,  3116, 

Goodrich  v.  Domingo,  Tbie 

V.   I'ai'ker 

v.  I'eople  ^„,„ 

Goodrum  v.  State  281  <. 

Goodwin  v.  Bishiop 

V.  ISTcGehee 

V.   State  2713,  2719.  2729, 

Goodyear  v.  Providence  Rubber  Co. 
Gordon  v.  Gordon 

V.  Hobart 

V.  Lewi.s  3229, 

V.   People 

V.  State  3073. 

Gore  V.  State  2789, 

Goree  v.  Clements 

V.   State  2889, 

Gorman  v.  State  2866, 

Gorzell  v.  State 
Goshen  v.  Stonington 
Goss  Printing-Press  Co.  v.  Scott 
Gottfried  v.  Crescent  Brew.  Co. 
Gould  V.  Elgin  City  Banking  Co. 
Govatos  V.  State 
Graaff  Bernstorf.  The 
Grace  Dollar.  The 
Grace  Girdler,  The  3367,  3368, 

Graeter  v.  State 
Grafton  Bank  v.  Doe 
Graham  v.  Oliver 

V.  State 
Granberry  v.  State 
Grant,  In  re  3227, 

Grant  v.  Gould     3397.  3399.  3400. 
3424,  3426,  3427, 

V.  State 
Grantham  v.  State 
Granite  State,  The  3379, 

Granon  v.  Hartshorne    3295,  3303, 

Graveley  v.  Commonwealth 
Gravely  v.  State  3013, 

Graves  v.  People 

V.   State 
Gravett  v.  State    2735,  2744,  2750, 
Gravitt  v.  State 
Gray  v.  Commonwealth 

V.   ^Murray 

V.  New  York  Nat.  Bldg.  Asao. 

V.   State  2715,  3036, 

Grav  .Tacket.  The  3267,  3332, 

Great  Northern,  The  3355, 

Great  Republic.  The  3375, 

Greely  v.  Ilamman 
Green  v.  Brien 


Goddard 
V.  Greeu 
V.  Lanier 

State 


2706,  2709,  doTl, 
2996.  3008,  3016,  3020,  3042, 
3055,  3059a 

V.  Tuchner 
Greenawalt  v.  McEnelley 
Greene  v.  Bishop 

V.  Harris 
Greenfield  v.  People 
Greenhuff's  Case 
Greenleaf  v.  Leach 
Greenough.  In  re 
Greensborough  v.  Underbill 
Greenwood  v.  Greenwood 

V.   State 
Greer  v.  State 
Gregory  v.  Duke  of  Brunswick 

V.  State  3032,  3041,  3044 


977. 

865, 


2717, 


3214 
3118. 
3120 
329:5 
8218 
3165 
2835 
3199 
3223 
3035, 
3042 
3175 
3214 
3221 
3231 
2786 
3093 
2792 
3213 
2894 
2867 
3141 
2803 
3223 
3233 
3234 
2967 
3335 
3300 
3369. 
3375 
3065 
3202 
3214 
2806 
2797 
3233 
3420. 
3460 
3001 
2919 
3383 
3304. 
3308 
2725 
3026 
2707 
2728 
2751 
2725 
3044 
3212 
3229 
3042 
3335 
3359 
3382 
2702 
3280 
2854 
3218 
3232 
2912, 
3043, 
3070 
2929 
2863 
3226 
3176 
2723 
2999 
3231 
2979 
2867 
3286 
31 28 
3109 
2951 
3045 


Grentzinger  v.  State 

Grider  v.  State 

Griffin  v.  State      2721,  2756,  2943, 


V.   Wilcox 
Griffith  V.  State 
Griffiths  V.  State 
Grigsby  v.  Weaver 
Grillo  V.  State 
Grim  v.  Norris 
Grimes  v.  Ililliary 
Grimley,  In  re 
Grimm  v.  United  States 
Grimmett  v.  State 
Grisham  v.  State 
Griswold  v.  Simmons 
Grob  V.  Cushman 
Grooms  v.  State 
Grosholz  V.  Newman 
Groves  v.  State 
Grubbs  v.  John  C.  Fisher, 
Grunson  v.  State 
Guetig  V.  State 
Guilliaume  Tell,  The 
Guiteau's  Case 
Gundaker  v.  Ehrgott 
Gunn  V.  Brantley 
Gunter  v.  State 
Gunther  v.  People 
Gurney  v.  Ford 
Guthrie  v.  State 
Guynes  v.  State 
Gypsum  Prince,  The 


3400, 

2774, 


3419, 


2889, 


3220, 
2990, 


The 


2778, 


2976, 
2706, 


3036, 
3120, 


H 


H.  F.  Dimock,  The 


3370,  3375, 


H.  B.  Foster,  The 

H.  E.  Thompson,  The,  v.  Martin 

Hackney  v.  State 

Iladden  v.  Peonle 

Hadley  v.  State 

Hagar  v.  State 

Haggett  V.  Welsh 

Haggerty  v.  St.  Louis  &c.  Co. 

Haines  v.  State 

Ilalbrook  v.  State 


Hale  V.  State 
Hales  V.  Pomfret 
Haley  v.  State 
Hall  V.  Doran 
V.  Joiner 
V.  Laver 
V.  Linn 
V.  Maltby 
V.  McKechnie 
V.   People 


2859,  2861, 
2863. 


3101 


..   State  2721,  272.5,  2797, 

2934,  3000,  3002,  3026,  3039, 

Halleck  v.  State 
ITallett  V.  llallett 
Hallie  Jackson,  The 
Halloran  v.  State 
Hamby  v.  Samson 

V.   State 
Hamersly  v.  Lambert 
Hamilton  v.  McClaughry  3415, 

3424,   3425,  3427,  3439, 

V.   People  2732,  2814,  2815, 

v.  Southern  Nev.  &c    Min.  Co. 

V.  State     2709.  2717.  2723, 
3000.  3004.  3009.  3065, 
Hamilton-Brown  &c.  Co.  v.  Saxey 


3059 
2972 
2961, 
3099 
3423 
2782 
3053 
3177 
2969 
3218 
3197 
3427 
2726 
3102 
3068 
3209 
3223 
2993 
3213 
2780 
3272 
3050 
2728 
3347 
3419 
3198 
3204 
3041 
3121 
3213 
2902 
2914 
3377 


3388, 
3389 
3363 
3310 
3062 
2738 
3016 
2986 
3218 
2716 
3037 

2862, 
2866 
2952 
3193 
3050 
3176 
3195 
3233 
3175 
3214 
3170 
3129. 

2816, 

3040, 
3059 
2816 
3223 
3343 
2731 
3052 
3019 
3183 

3416, 
3442 

2816, 
3024 

3217. 
3232 

2915, 
3066 
2951 


TABLE   OF    CASES. 


xli 


IReferences  are  to  Sections.'] 


riammond  v.  Foreman 

3175 

Ilammonia.  The 

3386 

Hamper's  Case 

3080 

Hampson  v.  Taylor 

3066 

Hampton  v.  State 

3172 

Ham's  Case 

2802, 

2863 

Hanawalt  v.  State 

3095 

Hanchett  v.  Blair 

3199 

Hancock  v.  Guerin 

3284 

Hand  v.  Elvira,  The 

3348, 

3349, 

3360, 
3476 

3058 

V.   State 

Handley  v.  Heflin 

3195 

Handy  v.  State 

3065 

Hanes  v.  State 

3093 

Haney  v.  Baltimore  &c 

.  Co. 

3380 

V.   Louisiana,  The 

3378 

Hanks    Dental    Assn. 

V.    Interna- 

tional  Tooth  Crown 

Co. 

3178 

Hann  v.  Barnegat  &c. 

[mp.  Co. 

3224 

Hannam  v.  Mockett 

2833 

Hannaman  v.  State 

3171 

Hannel  v.  State 

3172 

Hanney  v.  Commonwealth 

2721 

Hannon  v.  State 

3099, 

3102 

Hanoflf  V.  State 

2705 

Hanover  Nat.  Bank  v. 

Klein 

3206 

Hans  V.  State 

2714, 

3171 

Hanscom  v.  State 

3073, 

3079 

Hany  v.  State 

3007 

Hanye  v.  State 

3016 

llarliaiigh  v.  People 

3000 

Harherger  v.  State 

3052 

Hardebeck  v.  State 

3125 

Harden  v.  Gordon 

3250 

Hardin  v.  State 

3166 

Harding  v.  Handy 

3231 

V.   Harding 

3225 

V.   Hawkins 

3202 

V.   State 

2994 

Hardtke  v.  State 

3092, 

3093, 

3108 

Hardy  v.  State 

3035 

Hargraves  v.  Miller 

3216 

Harkey  v.  State 

3065 

Harkness  v.  State 

3016 

Harkreader  v.  State 

30S7 

Harlan  v.  State 

2714 

V.   Wingate 

3199 

Harley  v.  Four  Hundred  and 

Sixty- 

seven  Bars  &e. 

3363 

Harmon  v.  Harmon 

2861 

v.   State 

3009 

V.  Tappenden 

3427 

V.  Territory 

3100 

Harmonie 

3347 

Har])  V.  State 

3090 

Harper  v.  State 

2724 

Harrel  v.  State 

2784 

Harriet.  The 

3246, 

3253, 

3255 

Harrigan  v.  Gilchrist 

3212 

Harrington  v.  Miles 

3052 

V.   People 

2851 

2852 

V.   State 

2721 

Harris  v.  Carter 

3305 

V.  Collins 

3205 

V.   Ferris 

3233 

3234 

V.   Harris 

2865 

3207 

V.  Moore 

3183 

V.   People 

2714 

3091 

V.   State            2725, 

2775, 

2785, 

2787, 

2967,   2071.   2972. 

2999, 

3009, 

3019. 

3030,  3035 

,  3041 

3059 

3172 

V.  ■U'hite 

2900 

Harrison  v.  Commonwealth 

3014 

303S 

V.   People 

30.->l 

V-.   State 

2785 

2999 

3026 

Hart  V.  Bloomfield 

3183 

v.  Carpenter 

3211 

V.  Clark 

3215 

Hart  V.   Hawkins 

v.  Hicks  2921,  2229,  2934, 

V.   Hopson  2940, 

V.   State  2725,  3055,  3056, 

V.   Stribling 

V.   Ten  Kyck     3193.  3201,  3211, 
Hartfield  v.  Brown 
Hartley  v.  I'onsonby  3299, 

Hartnett  v.  Plumbers'  Supply  Asso. 
Hartwell  v.  United  States 
Harvev  v.  State 

V.   Territorv  3142,  3149, 

Harwell  v.  State  3114, 

Harwood  v.  .loues 

V.   People  3063, 

Haskell    v.    P.aile.v 
Hatch  V.  Indianapolis  &c.  R.  Co. 

Hal  chard  v.  State  2764, 

Hatchett  v.  Commonwealth 

Hately  v.  State 

Hatfield  v.  Gano 

Hathaway  v.  Hagan  3221, 

V.   Rice  2844, 

Hathcote  v.  State 
Hauk  V.  State 
Haulenbeck  v.  Cronkright 
Hausenfluck  v.  Commonwealth 
Ilauser  v.  People 

V.  Tate 
Ilavermeyers   &c.   Co.   v.   Compania 

&c.  Fspanola 
Ilaveron  v.  Goelet 
Hawes  V.  Brown  3212, 

V.   State 
Hawkins  v.   State  3033,  3041. 

3097, 
Haxby,  The  3360, 

Hayes  v.  Hammond 

V.   People  2861, 

Haymond  v.  Camden 
Ilaynes  v.  State 
Hayward  v.  Carroll 

V.   Eliot  &c.  Bank 
Hays  V.  Carr 

V.    People 

V.   Pittsburgh  &c.  Co. 

V.   State  2723,  2767,  2822, 


Hazard's  Cargo.  The 

Hazen  v.  Commonwealth  2924, 

V.   State 
Hazzard  v.  Vickery 
Heacock  v.  Ilosmer 
Head  V.  State  3017. 

Hearn  v.  State 
Hearne  v.  De  Young 
Heartt  v.  Corning 
Heath  v.  Commonwealth 

V.   Frie  R.  Co. 
Hebblethwaite  v.  Hepworth 
Hebe,  The 
Hecox  V.  State 
Hedderich  v.  State 
Hedley.  Ex  parte  2965, 

Iledley  v.  Pinkney  &c.  Co. 
Heeg  v.  Licht 
Heeren  v.  Kitson 
Heffron  v.  Gore 

Heflin  v.  State     3065,  .3071.  3077. 
3082.  3083,  3084, 
Hoine  v.  Commonwealth 
Ileiliiian  v.  Commonwealth 
Hcintz  V.  T'rilon  Quarter  Sessions 
Helen  and  George,  The  3363, 

llellin  V.  State 
Helgoland.  The 
Helm  V.  First  Nat.  Bank 


3212 
2936, 
2942 
2942 
3059 
3213 
3223 
3209 
3305 
2951 
27.SO 
3153 
3152 
3119 
3206 
3065 
3169 
3228, 
3229 
2771 
2777 
2774 
2764 
3230 
2845 
3166 
2713 
3236 
3150 
2727 
2937 

3273 

3300 
3216 
3013 
3096, 
31(»4 
.3366 

286.3 
3236 
2987 
3206 
3198 
3213 
2817 
3259 
2835, 
2919 
3335 
2931 
3009 
2901 
3175 
3028 
2784 
3194 
3208 
2720 
3105 
2S61 
334.S 
3050 
2703 
3405 
3299 
3069 
3198 
3226 
3078, 
3086 
2930 
3004 
3074 
3364 
3077 
3153 
3175 


xlii 


TABLE    OF    CASES. 


IReferences  are  to  Sections.'i 


Helser  v.  McGrath 
Hemingway  v.  State 
Ilemiup,  Matter  of 
Hemphill  v.  State 
Henderson,  Ex  parte 
Henderson  v.  Foster 

V.   Harness 

V.   Huey 

V.   People 

V.   State 


2743, 

2919,  2964, 

3038, 


Hendle  v.  Geiler 
Hendrick's  Case 
Hendrix  v.  Holden 

V.   State 
Henline  v.  People 
Hennessey  v.  Versailles,  The 
3359, 
Henrich  v.  Saier 
Henrick  and  Maria,  The 
Henry  v.  Curry 

V.   Mayer 

V.   State 
Henry,  The 
Henry  Coxon,  The 
Henry  Ewbank,  The 
Henry  Miller's  Case 
Henry  Steers,  Jr.,  The   3348, 

Henslev  v.  State 

Henson  v.  State  3014, 

Hercules.  The  3314, 

Herkimer,  The 

Herman  v.  State 

Hermann  v.  State 

Hermine.  The 

Hermon.  The 

Hernandez  v.  State 


2940, 
29<i.'., 
32i:t;, 
3077, 


2744, 
2993, 
3059, 


3350, 
3360, 


3330, 


3175. 

2727, 


3348, 
3351, 


3022 
3315. 


3046,  3056, 


Heroe.  The 
Heron  v.  State 
Herron  v.  Hughes 

V.   Peggy.  The 
Herrick  v.  Belknap  3226, 

Herzinger  v.  State 
Hess  V.  Sparks 

V.   State  2954,  2955, 

Hester  v.  State 
Hewett  V.  Adams 
Hewitt  V.  State 
Hey  V.  Commonwealth 
Heywood  v.  Tillson 
Hibbard  v.  Chicago 
Hibernia.  The 
Hickam  v.  People 
Hickerson  v.  Benson 
Hickman  v.  Painter 
Hickory  v.  United  States 
Hicks  V.  Hogan 

V.   State 

V.   United   States 
Ilickson  V.  Brvan 
Higginbotham'v.  State    2817, 
Higgins  V.  Commonwealth 

V.   Conner 

V.   People 
Higgs  V.  State 
High    V.    State 
Hightower  v.  Hawthorne 
Higler  v.  People 
Hilburn  v.  State 
Hildebrand  v.  People 
Hildreth  v.  State 
Hiler  v.  People  2861, 

Hill  V.  Binney 

V.  Commonwealth 

V.  People 

V.  State     2839,  3043, 


3307, 
3227, 


2988, 


3115 


2724 


2723 
2774 


2827, 
2742 


2874 


3014 
3050, 


2044 

l.".t72 

3089 
3421 
3234 
3235 
3221 
2745 

3001, 
3119 
2822 
2954 
3231 
2856 
3066 

3354. 
3361 
2942 
3333 
3261 
3177 
2834 
3363 
3314 
3352 
3247 

3352, 
3366 
2811 
3065 
3316 
3320 
3036 
2752 
3292 
3310 

3071, 
3089 
3299 
3172 
2920 
3317 
3312 
3065 
2876 
2980 
3117 
3214 
3167 
3116 
2951 
3066 
3299 
2720 
2999 
3202 
2991 
3221 
3017 
2782 
3206 
2829 
2747 
3197 
3099 
3049 

3041a 
3271 
2979 
3034 
3056 
2804 
2866 
3216 
2915 
3023 

3129, 
3172 


Hilleary  v.   Hurdle 

3213 

Hillier  v.  Farrell 

3217, 

3229, 

3231 

Hiltabiddle  v.  State 

3093 

Hilton  V.  Eckersley 

2951 

Hinch  V.  State 

3041, 

3090 

Hindman  v.  Shaw 

3298 

Hinds  V.  State 

2810, 

2811, 

2816 

Hinkle  v.  Hinkle 

3177 

V.   State 

2843, 

3152 

Hinshaw  v.  State 

2713, 

2719, 

3043 

Hipes  V.  State 

3010 

Hiram.  The 

3342 

Hirschman  v.  People 

3036 

Hitchins  v.  I'eople 

3000 

V.   State 

3000 

Hite  V.  State 

3050 

Hitesman  v.  State 

3090, 

3091 

Hittner  v.  State 

2724, 

2849 

lioagland  v.  Saul 

3232 

Hoak  V.  State 

3167 

Hobart  v.  Andrews 

3213 

V.   Drogan 

3244 

Hobbs  V.  State 

2997, 

3044 

Hoboken  Sav.  Bank  v.  Beckman 

3204 

Hobson  V.  State 

3167, 

3172 

Hodge  V.  State 

3026 

Hodges  V.  Bales 

3141 

V.   State 

3172a 

Hoffman  v.  Port  Huron 

3066 

V.  State 

2714 

Hoe  V.  Scott 

3224 

Hogan  V.  State 

3065, 

3103 

Hoghton 

3293 

Holbrook  v.  State 

3050 

Holcomb  V.  Cornish 

2893 

Holder  v.  State 

2720 

Holman  v.  Vallejo 

3213 

Ilolladav  Case 

3199 

Holland  V.  State  2721, 

2910, 

2912, 

3016, 

3017, 

3116 

Holler  V.  State 

3041 

Holley  V.  State 

2727, 

3036 

Hollingsworth  v.  State 

2969, 

2970 

HoUister  v.  Barkley 

3223 

V    state 

2827 

Hollowai,  In  re 

3290 

Holly  V.  Stale 

305:: 

Holmes  v.  Baddeley 

3289 

V.   Holmes 

3236 

V.  Joseph  C.  Griggs 

The 

3.S.'.6 

V.   State 

3022. 

3044 

Holt  V.  State 

3030, 

3115 

Ilolton  V.  State 

3108 

Holtz  V.  State 

2937, 

3043 

Home  V.  Camden 

3320 

Home  Ins.  Co.  v.  Myer 

3193 

Home  Land  &c.  Co.  v. 

McNamara 

3229 

Homely.  The 

3364 

Homestead  Case 

3159 

Honaker  v.  Board  of  Education 

•js'.n 

Honore  v.  Colmesnil 

3236 

Hood  V.  Smith 

3213 

V.   State 

2873, 

3043, 

3070 

Hoof.stitler  v.  Hoofstitl 

er 

3225 

Hooker  v.  State 

2810, 

3052 

Hooper  v.  Holmes 

3212 

V.   Strahan 

3213 

V.   Ignited  States 

3328 

Hope  V.  Johnston 

3213 

V.   People 

3137, 

3139. 

3140 

Hopkins  v.  Commonwealth 

3035, 

3166 

V.   Oxley  Stave  Co. 

2951 

V.   Pritchard 

3231 

Hoppet.  The 

3259 

Hopps  V.  People 

2728 

Ilopt  V.  People 

2729 

V.   Utah 

3027 

Horace  B.  Parker,  The 

3265 

Horn  V.  Foster 

3074 

TABLE    OF    CASES, 


xliii 


IReferences  are  to  Sections.] 


Horn  V.  State 

2713, 

2724 

Hutcherson  v.  State 

2970. 

3071. 

3085, 

Hornbeck  v.  State 

2843, 

2975, 

3098, 
3099 

Ilutchins  V.  Hutchins 

3090 
2920 

Home  V.  State 

2713 

Hutchinson  v.  Coombs 

3300 

Horner  v.  United  States 

2999 

V.  (ilover 

3283 

Hornsby  v.  State 

2707, 

3026 

V.   Hutchinson 

2843 

Horton  v.  State 

3007, 

3108 

Hut  son  V.  Jordan  3250, 

3270, 

3280, 

3281 

House  V.  State 

2785, 

3166 

Huttley  V.  Simmons 

2920 

llousleman    v.    People 

31T2a 

Ilutton  V.  Moore 

3209 

Ilouser  V.  State 

2914 

Huyck  V.  Bailey 

3200 

Houlditch  V.  Donegal 

3214 

Hyderabad,  The 

3355 

Houston  V.  Moore 

3419, 

3421 

Hyer  v.  Little 

3199 

V.   State 

2913 

Howard  v.  Pensacola  &  A.  R. 

Co. 

3213 

I 

V.  People 

3063, 

3065 

V.   State             2822, 

2835, 

3008, 

3066 

laege  v.  Bossieux 

3229 

Howe  V.  Russell 

3221 

lanthe,  The 

3292 

Howell  V.  Ashmore 

3195 

Iberia,  The 

3387 

V.   Commonwealth 

2742 

Ibottson  V.  Peat 

2833 

V.   McCrie 

2995, 

2996 

Ida  L.  Howard,  The 

3355 

Hoyt  V.  Hoyt 

3213 

Idaho  &c.  Improvement  Co.  v. 

Brad- 

Hubbard  v.  Camperdown  Mill 

s 

3222, 

bury 

3175 

3234 

Idlehour,  The 

3300 

V.  State 

3041a, 

3059 

Ingalls  V.  State 

2725. 

2729, 

2919 

Huber  v.  State     3050, 

3056, 

3096, 

3097, 

Illinois  &c.  Co.  v.  Waznius 

2848 

3098, 

3102, 

3104, 

3129 

Illinois  &c.  R.  Co.  v.  Illinois 

3247 

Hudelson  v.  State 

2732 

Ingersoll  v.  Stiger 

3201, 

3202 

Hudson  V.  State 

2937, 

3026 

Ingle  V.  Jones 

3183 

V.   Trenton  &c.  Co. 

3221 

Ind,  Coope  &  Co.  v.  Emmerson 

3286 

Hudspeth  v.  State 

2785 

India,  The 

3352 

Iluey  V.  State 

3170 

Indian  Chief,  The 

3323 

Huff  V.  Commonwealth 

2747 

Indiana,  The 

3360 

Huffman  v.  State 

3(101 

Ind  a  lapdlis  Gas  Co.  v. 

Indianapolis 

3195 

Huggins  V.  People 

3111, 

3114, 

3116 

Independence,  The 

3351, 

3355, 

3363 

Hughes'  Case 

3129 

Indus,  The 

3369, 

3379 

Hughes  V.  Blake 

3208 

Industrie.  The 

3343 

V.  Commonwealth 

3130 

Industry,  The 

3350 

V.   Kades 

3212 

Inman  v.  State 

2995 

V.   Garner 

3214 

Inues  V.  Newman 

3062 

V.   Ilanna 

3175 

Innis  V.  State 

3101 

V.   I'helps 

3196 

Inskeep  v.  Inskeep 

2791 

V.   State 

2772, 

2782, 

3172 

Insurance  Co.  v.  Dunham 

3240 

Hughey  v.  State 

3041 

lola.  The 

3265 

Huldah.  The 

3332 

lona.  The 

3266 

Huling  V.  Farwell 

3226 

Irbv  V.  State 

3030 

Hull  V.  Bell 

3175 

Iris,  The 

3262 

V.   Kawls 

2865 

Irvine  v.  Eptein 

3220 

V.   State 

2861, 

2866, 

2867 

V.  State 

3166 

V.   Watts 

3177 

Iseley  v.  State 

3007 

HuUey  v.  Chedic 

3176 

Island  City,  The 

3352 

Humbard  v.  State 

3169 

Isle  of  Cyprus.  The 

3278 

Humes  v.  Scruggs 

3201, 

3211 

Isom  V.  State 

2893 

Humphrey  v.  People 

2968 

Ison  V.  Ison 

3202 

V.   Pope 

2740, 

2742 

Ives  V.  Hazard 

3202 

V.  State 

3103 

V.  Medcalfe 

3193 

Humphreys  v.  Ward 

3177 

Izard  V.  Bodine 

3221 

Humphries  v.  State 

3065 

Hunsinger  v.  Hofer 

2941 

J 

Hunt  V.  Commonwealth 

2725 

V.   I'eople 

2835 

J.  E.  Trudeau,  The 

3264 

V.   Rousmanier 

3215 

J.  P.  Spencer.  The 

3153 

V.   State 

2917. 

3167 

J.  G.  Paint,  The 

3363, 

3364 

Hunter,  The 

3340 

Jacks  V.  Nichols 

3199 

Hunter  v.  State   2719, 

2765, 

2941, 

2942, 

Jackson  v.  Commonwea 

1th 

3026, 

3043 

2943, 

3055 

V.   Hart 

3205 

Hunter's  Case 

2939 

V.   Humphrey 

3090 

Huntress.  The 

3242 

V.   Jackson 

3223. 

3227 

Hurd  V.  Ascherman 

3198 

V.    People           2863, 

297G, 

2978, 

2980 

Hurell  V.  State 

3115 

V.   Spivev 

3176 

Hurlbut  V.  McKone 

3064 

V.   Stanfield 

2951 

Hurley  v.  State 

2912, 

3052 

V.   State            2792, 

2795. 

2913, 

2916, 

Hurricane  Tel.  Co.  v.  Mohler 

3195 

2967.   2968,   2969. 

2972. 

3000. 

3007. 

Hurst  V.  Jones 

3193 

3014,   3016,  3041, 

3052, 

3104, 

3168 

Hurtzig  V.  Hurtzig 

2791, 

2792 

Jackson's  Case 

3088 

Hussey  v.  State 

3038, 

3146 

Ja('K-s;on    V.    State 

3041a 

Huston  V.  Cassidy 

3235 

Jacob  E.  RIdffway 

3364 

V.   People 

3092, 

3093 

Jacobs  V,  State 

3080, 

3090, 

3122 

V.  Wadsworth 

3218 

v.   Van  Sickle 

3199, 

3201 

xliv 


TABLE    OF    CASES. 


[References  are  to  Sections.'] 


James  v.  Atlantic  &c.  Co. 

V.  James 

V.   McKernon 

V.   Stare  2709,   2913,   3129, 

James  Cook,  The 
James  M.  Thompson,  The 
James  Wells,  The 
Jamison  v.  State 
Jansen  v.  Theodor  Heinrich,  The 


Janzen  v.  People 
Jarnigan  v.  State 
Jay  V.  Allen 

V.   Almy 
Jay  Gould.  The 
Jeffers  v.  State 
Jefferson  v.  State 
Jefferson  Borden,  The 
Jeffreys  v.  Yarborough 
Jemley  v.  State 
Jenkins  v.  Bryant 

V.  Bushby 

V.   Eldredge 

V.   State  2731,  2756, 

3043,  3093,  3104,  3111, 
Jenks  V.  Lewis 
Jennings  v.  Dolan  3228, 

V.   People 
Jenny,  The 
Jenny  Lind,  The 
Jeremiah  Godfrey,  The 
Jesse  V.  State 
Jessnp  V.  State 
Jessup's  Estate 
Jewell  V.  Rock  River  &c.  Co. 
Jimnierson  v.  State 
John.   The 
John  Eraser,  The 
John  Gilpin,  The 
John  Griffln.  The 
John  H.  Starin,  The 
John  Henry,  The 
John  L.  Dimmick,  The 
John  Martin,  The 
John  Wnrts.  The  33.">2 
Johnson  v.  Commonwealth 

2866.   2899,   2916,   2965, 

V.  Crippen 

V.  Cyane,  The 

V.  Gallagos 

V.  Harmon 

V.  Johnson 

V.  Jones 

V.  Lewis 

V.  McGrew 

V.  Meyer 

V.   Miller 

V.   Patterson 

V.   People 

V.   Sanford 

V.  Sayre 

V.  State 
2786.  2817,  2824,  2825 
2830.  2835,  2843,  2845, 
2931,  2946,  2979.  2980, 
3026.  3041.  3046.  3049. 
3058.  3059,  3095, 

V.  Thirteen  Bales  &c. 

V.  United  States 
Johnston  v.  Glancy 

V.   State 
Johnston  Co.  v.  Meinhardt 
Johnstone  v.  Sutton 
Joiner  v.  State 
Jolly  V.  State 

V.  T'nited  States 
Jones  V.  Abraham 

V.  Belt 

V.   Byrne 


3103, 
3250, 


3122, 


2808, 
3117, 


3229, 


2806, 


3296, 
3353, 


3307, 

3357, 
2708, 
3024, 


2865, 
3399, 


3217, 
2939, 


3050,  3070,  3090, 


2714,  2722, 


3421, 
2727 

2827] 
2874, 
2997, 
3052. 
3100. 


3212. 


2723,  2994, 


3198, 
3198, 


3178 
3207 
3214 
313."> 
3324 
3377 
3329 
2982 
3292, 
3293 
3105 
2838 
3299 
3270 
3378 
3108 
3087 
3300 
3227 
3123 
3227 
3283 
3214 
2939, 
3121 
3259 
3234 
2956 
3324 
3364 
3383 
2808 
3009 
3095 
3228 
3041 
3330 
3369 
3355 
3329 
3379 
3368 
3311 
3308 
3:{.'.8 
2859, 
3049 
3198 
3300 
3235 
3175 
2867 
3423 
3226 
3211 
3235 
2940 
2853 
3102 
3227 
3426 
2785, 
2829, 
2929, 
3015, 
3057, 
3120 
3328 
3026 
3213 
2724 
2951 
3426 
2995 
2938 
3052 
3199 
3205 
3234 


Jones  V.  Commonwealth    2983,  3129,  31X4 
V.  Davis  3292 

V.  Douglass  3221 

V.   Ilardestv  3206 

V.   llurlburt  2939,   2941 

V.   Jones  2865,   2867,  3053,  3095, 

3211 

V.   IMason  3200 

V.  Massey  3221 

V.   People         2725,   3038,  3059,  3059a 

V.  Person  3197 

V.  Phoenix,  The    3315,  3316,  3317 

V.  Seward  3423 

V.  Spencer  3217 

V.   State  2707,  2709,  2719,  2725, 

2760,   2763,  2813,  2817,  2866,   2808, 

2912,   2915,   2959,  2977,  2980,   2999, 

3013,  3023,  3026,  3035,  3043,  3045, 

3059,  3102,  3119,  3131,  3132,  3139, 

3140,  3141,  3144,   3148 

3174 

2981 

2951 

3231 

3272,  3352 

3323 

3231 

3132 

2980 

3032,  3035 

3218 

3341 

3367,  3392 

3240 

3323 

2772 

3215 

3066 

3206 

3213 

3335,   3341 

3333,  3338,  3340 

3250 

2991 

3227 

3251,   3267 

333T 

3116,  3117 

2820,   2829 

3056- 


V.  Thomas 

V.  T'nited  States 

V.  Westervelt 

V.  White 
Jonge  Bastiaan 
.Jonge  Pieter.  The 
Jordan.  Ex  parte 
Jordan  v.  Commonwealth 

V.   Osgood 

V.   State 

V.   Warner's  Estate 
Joseph  H.  Toone,  The 
Joseph  W.  Gould,  The 
Josephine,  In  re 
Josephine,  The 
Joseiihine  v.  State 
Joynes  v.  Statham 
Judd  V.  Fargo 

V.   Seaver 
Judy  V.  Gilbert 
Juffrouw  Anna,  The 
Julia,  The  3323 

Juliana,  The 
Jumpertz  v.  People 
June  v.  Myers 
Juniata.  The 
Juno,  The 
Jupitz  V.  People 
Justice  v.  Phillips 
Justices  &c.  V.  Henderson 


K 


Kahn  v.  State 

v.   Weinlander  3179, 

Kallisto.  The 
Kamhira.  The 
Kammermeyer  v.  Hilz 
Kankakee  &c.  R.  Co.  v.  Horan 
Kansas  L.  &  T.  Co.  v.  Sedalia  Elec. 
R.  &c.  Co.  3223, 

Kay  V.  Eowler 
Kazer  v.  State 
Keating  v.  Pacific  &c.  Co. 

V.   People 
Keaton  v.  Miller 

V.   State 
Keator  v.  People  3071, 

Keble  v.  Hickringill 
Kee  V.  Kee 

V.   State 
Keeble  v.  Hickeringill 
Keefe  v.   State 
Keely  v.  State 

Keen  v.  Maple  Shade  &c.  Land  Co. 
Keener  v.  State  2728, 

Keesier  v.  State 
Keetou  v.   Commonwealth 


2792 
3199 
3367 
3293 
3177 
3193 

3224 
3221 
2816 
3299 
3052 
3213 
3152 
3075 
2833 
3231 
2721 
288a 
2834 
3056 
3213 
3041 
2723 
3140 


TABLE    OF    CASES, 


xlv 


IReferences  are  to  Sections.} 


3042. 


3195, 
2723, 


3212, 


2719,  3026, 
2709,  30C6, 


2912 
2757.   3144. 


Kopton  V.  State 
Kegg  V.  State 
Kei.ser  v.  State 
Keith  V.  Henkleman 

V.   State 
Koithler  v.  State 
Kelch  V.  State 
Keller  v.  State 
Kelley  v.  Boettcher 

V.   I'eople 

V.   State 
Kellock  V.  Home  c&c.  Ins.  Co, 
Kellogg  V.  Singer  &c.  Co. 

V.   \Vood 
Ke'lum  V.  i:merson 
Kelly  V.  Kelly 

V.    I'eople 

V.   State  2912,  3093, 

V.  Wayne  Co.  Clr.  Judge 
Kelsey  v.  Hobby 

V.   Western 
Kelsoe  v.  State 

Kemp,  In  re  3400, 

Kenah  v.  John  Markee,  Jr.,  The 
Kendriek  v.  Commonwealth 
Keneval  v.  State 
Kennedy  v.  Davenport 

V.   Kennedy 

V.  Meredith 

V.   I'eople 

V.   State 
Kenney  v.  State 
Kenny  v.  Lembeck 
Kent  V.  People 

V.   State 
Kenyon  v.  People 

3147,  3148,  3152 
Keone  v.  People 
Kernan  v.  State 

Kerosene  Lamp  «S:c.  Co.  v.  Fisher 
Kerr  v.  South  I'ark  Comrs. 
Kerrains  v.  People 
Ketehell  v.  State 
Keyes  v.  State 

V.  United  States  3419 

Keystone.  The 
Kidd  V.  Maniey 
Kidder  v.  Barr 
Kidwell  V.  State 
Kief  V.  State 
Kilbourn  v.  Latta 
Kilgore  v.  State 
Killins  V.  State 

Kilpatrick  v.  Commonwealth    3014 
Kilrow  V.  Commonwealth 
Kimball  v.  Harman 
Kimberly  v.  Arms 
King  V.  Bryant 

V.  Burdett 

V.  Commonwealth 

V.  Payan 

V.  I'ouy  Gold  Mine  Co. 

V.  State     2714,  2725,  2768, 
3022,  3030,  3063,  3065,  3071 
Kingen  v.  State 
Kinnebrew  v.  State 
Kinney  v.  Koopman 
Kiphart  v.  State 
Kirby  v.  State 

V.  Tnited  States 
Kirby  Hall.  The 
Kirk  V.  Commonwealth 

V.  Territei-v 
Kirkham  v.  People 
Kirkman  v.  Vanlier 
Kirland  v.  State 
K'rtley  v.  State 
Kissel  V.  liPwis 
Kistler  v.  State 


2920 
3218 


3122 


3197 


2721,  2877 


3129 
2997 
3170 
3175 
3102 
2778 
2728 
3153 
3218 
2937 
2806 
3287 
3199 
3196 
3259 
3213 
3172a 
3147 
3178 
3217 
3213 
3026 
3423 
3264 
3006 
2860 
3206 
3216 
3217 
3027 
3137 
3098 
3216 
3023 
3049 
3145, 
3153 
3038 
3029 
3222 
3175 
2717 
2980 
3039 
3434 
3266 
3214 
3209 
3168 
2823 
3198 
3036 
2720 
3016 
3118 
2951 
3236 
3222 
3234 
3028 
3202 
3174 
2918, 
3075 
2847 
2774 
3069 
3126 
3030 
3113 
3387 
2960 
3041a 
3043 
3226 
2836 
2984 
3063 
2887 


3082,  3089, 


Kitchen  v.  State 
Klein  v.  Landman 

V.   People 

V.   State  2822,   2828,   2831, 


Kline  v.  Kline 
V.   Triplet! 
Kiutts  V.  McKenzie 
Knagg  V.  Goldsmith 


3307,  3312, 


Kneeland  v.  State 
Kniekerbacker  v.  Harris 
Kniekerbocker  v.  People 
Knights  V.  State  2720, 

Knowles  v.  Slate 
Koch  V.  State 
Koerner  v.  State 
Kohlraeyer  v.  Kohlmeyer 
Kohn  V.  McNulta 
Kollock  V.  State 
Komrs  v.  People 
Kossakowski  v.  People 
Kota  V.  I'eople 
Kotter  V.  People 
Krambiel  v.  Commonwealth 
Kramer  v.  Commonwealth 
Kramme  v.  New  lOngland 
Krause  v.  Commonwealth 
Krchnavy  v.  State 
Kreamer  v.  State 
Krona,  The 
Kruschke  v.  Stefan 
Kuhliger  v.  Bailey 
Kunde  v.  State 
Kurtz  V.  Moffitt 


The 


3280, 
3345,  3346, 


Soo  River  &c.  Co. 


3345 


3141,  3150, 

2981 
3296 


L.  B.  Goldsmith 

L'Alerte 

L'Invincible 

I^a  Amistad  de  Rues 

La  Belle  Coquette 

La  Bellone 

La  Clorinde 

La  Fernier  ^ 

La  Furieuse 

La  Gloire 

La  Ilenriette 

La  Matt  v.  State 

La  Melanie 

La  Rosae  v.  State 

La  Rue  v.   State 

Ladd  v.  State 

Ladv  Campbell 

Lady  Pike,  The 

Laiiig  V.  Uaine 

I.iakG  V.  Skinner 

Lake  Krie  &c.  R.  Co.  v.  Bailey 

V.   (Jriffin 

V.  Indianapolis  &c.  Bank 
I-ake  Shore  &c.  R.  Co.  v.  McMillan 
Lamar  v.  State 
Lamb  v.  Parkman 

V.  State     2760,  2763,  2765, 

Lambert  v.  People     2925.  2929. 
2933,  2948,  3075,  3090 
Lambe's  Case 
Lambeth  v.  State 
I-ambright  v.  State 
Lamden  v.  State 

Liimington,  The   3314,  3351,  3354, 
Lampkin  v.  State 
I.ampton  v.  State 
Lamson  v.  Drake 
Lancaster  v.  Arendell 

y.  State     2708,  2709,  3026, 


3090 
2865 
2727 
2834, 
2805 
2817 
3212 
3218 
3314, 
3317 
3006 
3199 
2725 
2813 
3008 
2997 
3036 
3224 
3177 
2713 
2774 
2970 
3016 
2990 
2747 
2813 
3259 
3050 
30l'4 
3171 
3366 
3213 
3214 
3026 
3419 


3281 
3347 
3319 
3329 
3330 
3347 
3347 
3299 
3346 
3347 
3347 
3095 
3344 
3152 
3041a 
3166 
3300 
3384 
3194 
3196 
2951 
3176 
3200 
3211 
2934 
3264 
3050. 
3056 
2931. 
3134 
3037 
2965 
3030 
3074 
33r,r, 
2988 
2741 
3230 
3197 
3043. 
3046 


xlvi 


TABLE   OF    CASES 


IReferences  are  to  Sections.1 


2968, 
3328, 


2954, 


2802, 


3102, 


Land  v.  Cowan 
Lander  v.  Seaver 
Landis  v.  Lyon 

Lane  v.   State       2825,  3015,  3017, 

3049, 

Lang  V.  Merwin 

V.  State 
Langdon  Cheves.  The 
Langdon  v.  Goddard 
Langford  v.  People 

V.   State 
Langley  v.  Fisher 
I>angrish  v.  Archer 
Langsdale  v.  Bonton 
Langstaff  v.  LangstafiE 
Langston  v.  State 
Langtry  v.  State 
Lannan  v.  Clavin 
Lanning  v.  Smith 
Lanphere  v.  State 
Lanterinan  v.  Abernathy 
Larkins's  Appeal 
Lassiter  v.  State 
Laswell  v.  Robbing 
Latham  v.  Latham 
Laughlin  v.  State 
Laura,  The 

Laverty  v.  Vanarsdale 
Lawless  v.  State 
Lawrence  v.  Hester 

V.  Lawrence 

V.  State  3053,  3071,  3079, 

3093,  3095, 
Lawson  v.  State     2796,  2827.   2830, 
Layman  v.  Minneapolis  &c.  Co. 
Leach  v.  Fobes 

V.   Kundson 
Leak  v.  State 
Leame  v.  Bray 
Lebanon  v.  Heath 
Le  Bon  Aventure 
Le  Caux  v.  Kden 
Ledbetter  v.  State 
Lee.  In  re 
Lee  V.  Beatty 

V.  Lacey 

V.   State  2721, 

V.   Willock 
Lee  Tong,  In  re 
Leeds  V.  Marine  Ins.  Co. 


3199. 


I-efler  v.  State 
Leg-ore  v.  State 
Leigh  V.  Ward 
Lehigh  Valley  R. 
Leipsic,  The 
Leland,  The 


2977, 


Co.  V.  McFarlan 
3369,  3380,   3386, 


Lemon  v.  Rogge 

Lemons  v.  State  3027, 

Lenert  v.  State 

Le  Neve  v.  Le  Neve 

Le  Niemen 

Leonard  v.  Poole 

V.   State 

V.  Territory  2713 

Leonards  v.  Shields 
Leslie  v.  State 
Lester  v.  State 
L'Etoile,  The 
Lettz  V.  State 
Leuthold  v.  Fairchild 
Levert  v.  Redwood 
Levi  V.  State 
Levy  V.  People  2777. 

V.  State  2963. 

Lewallen  v.  State  2724, 

Lewis,  In  re 
Lewis  V.  Commonwealth 

V.  Elizabeth  and  Jane,  The 


2714,  2919, 
2910. 
3314. 


3218,  3221 


3212 

2844 
3176 
3032, 
3052 
2999 
3041 
3342 
3214 
2918 
3070 
3214 
3001 
3066 
2794 
3052 
2863 
3229 
3200 
3105 
3213 
3206 
2998 
3234 
2794 
3099 
3357 
2920 
2996 
3213 
3227 
3080, 
3227 
3166 
3216 
3211 
3175 
3079 
2836 
3497 
3347 
3320 
3053 
3166 
3214 
2726 
3099 
3227 
2999 
3206 
2979 
3099 
3206 
3213 
3359 
3387, 
3389 
3234 
3038 
2792 
3199 
3346 
2951 
2905 
2726 
3426 
3059 
3049 
3346 
3009 
3195 
3231 
3113 
2778 
3041 
3040 
3153 
3170 
3306 


Lewis  V.  Hoover 
V.  Mason 
V.  North 
V.  Owen 
V.  People 
V.  State 


3201 


2723 
2720,  2825 


3155 


3071,  3077 


3149 
2725,  3016,  3017, 
3059, 
Licette  v.  State 
Life  Asso.  &c.  V.  Boogher 
Liggett  V.  State 
Lillie  V.  State 
Lima.  The 
Limerick  v.  State 
Limland  v.  Stephens 
Lincecum  v.  State 
Lindo  v.  Rodney 
Linehan  v.  State 
Links  V.  State 
Linn  v.  Commonwealth 
Linsday  v.  People 

v.    State 
Linton  v.  State 
Lion,  The 
Lipes  V.  State 
Lippincott  v.  Bechtold 
Lipschitz  V.  People 
Lisbon  v.  Lyman 
List  V.  Miner 
Little  V.  State 

V.   Stephens 
Littlefield  v.  State 
Littlejohu  v.  Regents 
Littleton  v.  State 
liively.  The 
Livesey  v.  Livesey 
Liverpool  &c.  Co.  v.  Phenix  Ins.  Co. 
Liverpool  I'acket.  The     3332,  3335 
Lizzie  Frank.  The 
Lloyd  V.  (iuibert 

V.   Pennie 
Loan  &c.  Bank  v.  Peterkln 
Lock  V.  Foote 
Lockhart  v.  Leeds 

V.   State 
Lockman  v.  Miller 
liockwood  V.   State 
Loehner  v.  Home  Mut.  Ins.  Co. 
Loewenstein  v.  Rapp 
Loft  us  v.  Fischer 

Loggins  V.  State  2723 

Logne  V.  Commonwealth 
Lohman  v.  State  3002 

London  Merchant,  The 
London  Guarantee  &c.  Co.  v.  Horn 
London  Packet.  The         3323,  3327 
Londonderry  v.  Chester 
Long  V.  State        2816,   2975,  3055, 
3129,  3131,  3132,   3170,  3179, 

V.  Tampico,  The 
Longley  v.  Commonwealth 
Longshore  &c.  Co.  v.  Howell 
Loomis  V.  Fay 

V.   People  2975 

Lopez  V.  State 
Loraine  v.  State 
Lord  Abergavenny  v.  Powell 
Lord  Arundell  v.   Pitt 
Lord   Derbv.  The 
Lord   Melville's  Trial 
Lord  Middieton,  The 
Lord  v.  State        2798,  2799,  2801, 


Lorimer  v.  State 
Lossen  v.  State 
Lott  V:  State 
Lottawanna,  The 
Louis,  The 
Louisa  Agnes,  The 


3242,  3244 


2724 
3202 
3175 
3210 
3151 
3023, 

3172a 
3114 
2S75 
3079 
3046- 
3296- 
2941 
3297 
3108 
3320 
3023 
3057 
3074 

,  2785 

,  2994 
2797 
3375 
2715 
3231 
2S06 

,  31G3 
2817 
3044 
3211 

,  3088 
3218 
3053 
3332 
3233 
3258 

,  3341 
3299 
3258 
3217 
3175 
3207 
3212 
2786 
3206 
3052 
3965 
3212 
3175 

,  2780 

3041a 

,  3011 
3253 
2951 

,  3332 
2803 
3106, 
3183, 
3355 
3355 
3019 
2951 
3199 

,  3056 
2786 
3065 
3212 
3212 
2835 
2702 
3346 
2803. 
2874 
3068 
3172 
3166 

,  3245 
3320 
3341 


TABLE   OF    CASES. 


xlvii 


[References  are  to  Sections.'] 


2707,  2723, 
3009,  3099,  3100, 


Louisa  Jane,  The  3301, 

Louisiana,  The       3379,  3383, 
Love  V.  Keowne 

V.  I'eople 

V.   State 
Loveden  v.  Loveden 
Lovejoy  v.  Churchill    . 

V.   JMichels 
Lovell  V.  Galloway 

V.   Johnson 

V.   State 
Lovett  V.  State 
Lowder  v.  State 
Lowe  V.  State 

V.   Traynor 
Lowenthal  v.  State 
Lowery  v.  I'eople  2861, 

V.   State  2785, 

Lowman  v.  State 
Lowry  v.  Rainwater 
Loyd  V.  State 
Lucas  V.  Bank  of  Darien 

V.   State 
Lucille,  The 

Luck  V.  State  2714, 

Lucke  V.  Clothing  Cutters'  &c. 
Lucken  v.   Wichman 
Lucker  v.  Commonwealth 
Ludwig  Ilolberg,  The       3367,  3371, 
Luke  V.  State 
Lull  V.  Clark 
Luminary,  The 
Lumpkin  v.  State 
Lundell  v.  Cheney 
Lurch  V.  Holder 
Luster  v.  State 
Luther  v.  Borden 
Lutton  V.  State 
Luttrell  V.  State 
Lycoming  F.  Ins.  Co.  v.  Schwenk 
Lyell  V.  Kennedy  3280,  3290, 

Lyle  V.  State 
Lyles  V.  State  3032, 

V.   United  States 
Lyman  v.  Kansas  City  &c.  R.  Co. 

V.   People 
Lynch  v.  Metropolitan  &c.  Co. 

V.   Rosenthal 
Lyndhurst,  The 
Lynes  v.  State 
Lyon  V.  Tallmadge 
Lytle  V.  State  2729, 


M 

M.  J.  Cummings,  The 
Mabel  Comeaux,  The 
Mabey.  The  3267, 

Mabry  v.  Stale 
Macauley  v.  Tierney 
Mace  V.  State 
Mack  V.  Sharp 

V.   State 
INIackaye  v.  Mallory 
Mackenzie  v.  Flannery 
Mackey  v.  State 
Mackmurdo  v.  Smith 
Maclellan  v.  Seim 
Maconnehey  v.  State 
Madden  v.  State 
Madison  v.  Wallace 
Madonna  del  Burso,  The 
Magbee  v.  Kennedy 
Magee  v.  Moss,  The  3292, 

V.   People 
Maggie  Hammond,  The 
Maggie  J.  Smith,  The 
Magna  Charta,  The 
Magnet,  The 


3363 
3389 
3195 

2726 
2792 
2790 
3226 
2951 
3195 
3211 
3168 
3024 
2910 
3106 
3177 

2874 
2787 
3041 
3<MI5 
27S4 
3199 
304(i 
3268 
3046 
2951 
3175 
3171 
3390 
2810 
3224 
3329 
2786 
3227 
3216 
2797 
3400 
2982 
2990 
3123 
3291 
3166 
3033 
3107 
3194 
2861 
3175 
3011 
3381 
2780 
3214 
3090 


33S4 
3392 

3268,  3269 
3036 
2951 
2999 
3169 
2975 
3183 

3218,  3221 
3024 
2716 
3175 
2729 
2931 
3214 
3332 
3183 
3307 
2918 
32.58 
3376 
3389 

3296.  3300 


3298 
2725 


Magnus,  The 
Maher  v.  Bull 

V.    People  3023, 

Mahone  v.  Williams 
Maid  of  Auckland 
Maine  v.  I'eople  2768, 

Maines  v.  Slate 

Malachi  v.  State  2786, 

Malcolm  V.  Scott 

Malcolmson  v.  State  2969, 

Mallory  v.  State 
Malone  v.  Bell        3295.  3314,  3316, 

V.   Commonwealth 

V.   State 
Malta.  The  3296, 

Malz  V.   State 

.Manufacturers'  &c.  Co.  v.  Longley 
Man  V.  Ward  3174, 

Maiiaway  v.  State 
Maner  v.  State 
.Mangrove  Prize  Money,  The 
Mangum  v.  State 

Manila  Prize  Cases,  3318, 

Manistee.  The 
Manitoba.  The 
Mankey  v.  Willoughby 
Manley  v.  Mickle 

V.   I'eople 
Mann  v.  (^wen 

V.   People 

v.   State  2886,   2887,  3041, 

Mannahau  v.  State 
Manning  v.  Lechmere 

V.   Ludington 

V.   State  .3042,  3076,  3105. 

^Slannomy  v.  Walker 
Manro  v.  Almeida 
Mansergh.  In  re 
INIapstrick  v.  Ramge 
Marable  v.  State 
Marble  v.  Thomas 
Marcus  v.  State 
^larentille  v.  Oliver 
Maria.  The  3258, 

Maria  Martin.  The 
Maria  and  Klizabeth.  The 
Mariners  v.  Washington,  The 
Marion  v.  State  2713, 

Mar  lory   Brown,   The  3307, 

Markey  v.  State  3074, 

Marlborough  v.  Wheat 
:\Iarlowe  v.  Benagh 
Marnoch  v.  State 
Maroney  v.  State 
Marpesia.  The 
Marquette,  The 
Marr  v.  Marr 
Marra  v.  Bigelow 
Mars.  The 
Marsh  v.  Mitchell 
Marshall  v.  Cliflf 

V.   State  2731,  3024, 

Marshman  v.  Conklin 
Marsland  v.  Yosemite,  The 
Marston  v.  Commonwealth 
Martello.  The 

Martens  v.  Reilly  2920.  2921. 

2030.   2946, 

Martha,  The    3303,  3304,  3307, 

Martin.  In  re 

Martin  v.  Commonwealth 

v.   Dryden 

V.   Miller 

v.   Mott 

V.   State  2812,  2937,  2976. 

3038, 
Martin  Brown  Co.  v.  Perrill 
Martin  Wyncoop,  The 


3323: 

3178 
3i»42 
3226 
3367 
2770 
3089^ 
3044 
3214 
2972 
2991 
3317 
2742 
2830' 
3312 
2972 
2951 
3209 
2992 

.S34<> 
3166 
3332 
33S6 
3251 
3199 
319a 
3246 
2702 
2997 
3145 
2847 
3174 
3218 
3169 
3231 
3255 
3426 
2951 
2719 
3229 
3049 
2836 
3330 
3373 
3382 
3310 
3046 
3317 
3076 
3227 
3216 
3036 
2916 
3369 
3363 
3095 
3224 
3335 
3193 
3194 
3171 
3213 
3300 
3000 
3375 
2925. 
2951 
3308. 
3317 
3423 
29.59 
3206 
307S 
3421 
2099. 
30SS 
2942 
3262 


xlviii 


TABLE    OF    CASES. 


^References  are  to  Sections.'^ 


Martinez  v.  State  ^^^^    3082 

Marts  V.  State  3038,  3041 

Marvin  v.  Dutcher  glj^ 

Alarv    Tlie  3267,  3308,  3310,  3311 

Mary  Ann,  The  3263,  6-^^.) 

Mary  C,  The  %-^-l 

Mary  C.  Conery,  The  33lj 

Mary  E.  Dana,  The  33o4 

Mary  Ida,  The  g^'- 

Mary  Jane,  The  g-';^ 

Mary  I'atten,  The  ggJ* 

Mary   Paulina.  The  3310 

Marv  of  Alexandria,  The  32  <  8,  32  <  9 

Mary  v.  State  -»":^ 

Maryland,  The  ^-^"^'o^to:: 

Mascolo  V    Monteranto  ''^'-5; 
mIsod,  Ex  parte     3398.  3419,   3426,  3480 

Mason  v.  Bair  %^^^ 

V.   Martin  3-^^ 

v.-  StTte  2720,  2917,  3071,  3^0r^ 

T.  William  Murtaugh  3372 

Massey  V.  State  3|0ji 

Massie  v.  Commonwealth  £!04-,  di<y 

Master  &c.  Asso.  v.  Walsh  29ul 

Masterson  v.  State  30(3,   rfo<o 

Maston  v.  State  goga 

Matchin  v.  Matchin  ^<90,  -jJi 

Mathis  V.  Commonwealth  %7,^A 

Matthew  v.  Ilanbury       ^  3-14 

Matthews  v.  United  States  30J1 

Mattison  v.  State  ^^o^ 

Mattox  V.  United  States  2705 

Maury  v.  Culliford  3240 

Max  Morris.  The  3251,  3372,  3373 

Maxim-Xordenfelt   Guns   &c.   Co    v. 

Coifs  Patent  Firearms  Mfg.  Co.     3217 
Maxwell    v.    Jacksonville    Loan   &c.  ^^^^ 

*^'v'  State            2721,  3041,   3101.  3170 

May  v!  Sta'te                  '  ^      2866,  2910 

Mayer  v.  Journeymen  &c.  Asso.  -J;)  i 

V.   People  _J(o 

Maynard  v.  Richards  3175 

Mayo  V.  Clark  ^2?q 

V-  State  ^  .  ^  ,  ^  2(._58 
Mayor  &c.  v.  Alexandria  Canal  Co.     3067 

M'Gowen  v.  Young  31 J^ 

M'Hattan  v.  Bates  ^J^J 

McAdams  v.  State  3017,  3054 

McAdory  v.  State  -'-;; 

McAleer  v.  State  --^l^ 

McAlpin  V.  State  ^^^^    ^^*?f'  S^  w 

McAnally  v.  State  2917,  2941,  2942 

McArthur  v.  Phoebus  gJi  i 

V  State  .:iiby 
McAvoy  V.  State  3073 
McBride  v.  Commonwealth  30_b 

V  Stradley  31  (■:> 
McCabe  v.  Old  Dominion  S.  S.  Co.  3.386 
McCall  V.  State  ^V,l\~ 
McCambell  v.  Gill  3197 
McCandless  v.  State  3040 
McCarney  v.  People  2(74 
McCarthy  v.  Eggers  3266 
McCartney  v.  Berlin  2951 

V  State  2954,  2957,  2994 
McCarty  v.  State  2777,  2779,  3056.  31.S5 
McCaughey  v.  State  2759,  2(6.3 
McCauley  v.  State  3001 
McCaw  V.  Blewit  3202 
McCay  v.  State  2838 
McClellan  v.  State  2998 
l\rcClerkin  v.  State  3091 
McCloskey  v.  People  3129 
McCloughry  v.  Finney  3066 


McClung  V.  Colwell  3213 

McClure  v.  Commonwealth  2990 

McClurg   V.    Commonwealth  3041a 

McComb  V.  Commonwealth  2915 

McCombs  V.  State  3099,  3101 

McConkey  v.  Commonwealth  3026 

McConnell  v.  Hector  3323 

V.   McKillip  3005 

V.   State  3025 

McConnochie  v.  Kerr       3355,  3356,  3359 

McCook  V.  State  2729 

McCord  V.   People  2982 

McC(jrquodale  v.  Bell  3289 

McCoy  v.  I'eople  3035 

v.  State  3017 
McCrary  v.  State  2913,  3041a 
McCready  v.  Brother  Jonathan,  The  3264, 

3272 

V.   Goldsmith  3386 

McCue  V.  Commonwealth  3019 

McCullar  V.  State  3148,  3152 

McCulley  v.  State  2835 

McCulIoch  V.  State  2708 

MeCully  v.  Peel  3200 

McCune  v.  State  2714 

McDaniel  v.  Marygold  3177 

V.   State            3016,  3017,  3035,  3049. 

3129 

McDeed  v.  McDeed  2861 

McDermott  v.  State         2847,  3016,   3101 

McDonald  v.  Commonwealth  2721 

V.  Franchere  2835 

V.   Jacobs  3174 

V.   Thompson  3177 

McDonnell  v.  State         2987,  2991,  2995, 

2998 

McDougald  v.  Dougherty  3223 

McDowell  V.  State  3053 

McElroy  v.  Ludlum  3206 

V.   People  2972 

V.   Swope  3234 

McFadden  v.  State  3120 
McGarr  v.  State                2988,  2991,  2995 

Mcfiary  v.  McDarmott  3198 

McGee  v.  State  2975 

McGehee  v.  White  3199 

McGinnis  v.  State  2993 

McGintv  V.  State  3140 

McOrat'h  v.   State  2910,   2912 

McGregor  v.  State  2954,   2960 

McGuff  V.  State  3107 

McGuffle  V.  Planters'  Bank  3199 

McGuigan  v.  Gaines  3216 

McGuire  v.  People  2707 

McHenry  v.  Sneer  2920 

Mcllugh  V.  Schuylkill  Co.  2995 

Mclntire  v.  State  3118,   3120 

Mclntvre  v.  Ledyard  3178 

Mclver  v.  State  3057 

;\IcJunkins  v.  State  3068 
McKarsie  v.  Citizens'  BIdg  Asso.         3229 

McKav  V.  State  2831 
McKee  v.  State      2782,  2931,  2937,  2938 

McKenna  v.  People  2717 

v.   State  3022 

McKenzie  v.  State  2078 

IMcKim  V.  Thompson  3-06 
McKinlay  v.  Morrish       3259,  3260,  3272 

McKinne'y  v.  Pierce  3226,  3236 

McKissick  v.  Martin  3199 

McUain  v.  Commonwealth  3044 

McT.ane  v.  Johnson  3198 

McLard  v.  Linnville  3199 

McLean  v.  State  3035 

McLeland  v.  State  2797 

McMahon  v.  Burchell  3214 

V.   State  2808 

McMannus  v.  Lee  2942 

McMath  V.  State  3098,  3103 


TABLE   OF    CASES. 


xlix 


[References  are  to  Sections.'] 


McMillan  v.  McNeill 

3236 

Miller  v.  Cotten 

3215 

McMillen  v.  State 

2877 

V.  Dayton 

2934 

McMullen  v.  State 

3049 

V.  District  of  Columbia 

3199 

McxMullen  Lumber  Co.  v.  Strother 

3195 

V.   Indianapolis 

3175 

McMurray  v.  McMurray 

3215 

V.   Miller 

3230 

McMurriii  v.  Rigby 

3098 

V.   People 

3068 

McMurry  v.  State 

3082 

V.  People's  Lumber  Co. 

3235 

McXair  v.  Ragland 

3208 

V.   State            2847, 

2916, 

2931, 

2999, 

McXamara  v.  Home  Land  &c.  Co. 

3228 

3020,  3029, 

3041a 

,  3070 

3166 

V.   People 

2727 

V.  ToUison 

3205 

McNaughton  v.  Osgood 

3177 

V.  United  States 

3271 

McNeai  v.  Woods 

2806 

V.   United  States  &c 

.  Co. 

3195 

3211 

McXeally  v.  State 

2786 

V.   Wilkins 

3176 

McNutt  V.  Dare 

3193 

V.   Wills 

3177 

Mcl'hail  V.  State 

3119 

Milligan,  Ex  parte 

3398, 

3400, 

3423. 

McPlierson  v.  State                     3024, 

3170 

3426 

McQueen  v.  State 

3057 

Milligan  v.  Wissman 

3211 

McQuirli  V.  State              3096,  3101, 

3108 

Mills  V.  Commonwealth 

2758, 

2759, 

Mclioberts,  Ex  parte 

3423 

2766,   3141,   3142, 

3143 

3144 

3152 

McSein   v.    State 

2863 

V.   Gore 

3206 

McSwean  v.  State 

2720 

V.   Martin          3399, 

3415 

3423 

3424 

McSween  v.  McCown 

3220 

V.   State             2969, 

3001, 

3093, 

3109 

McTyier  v   State  3143,  3144,  3148, 

3150 

V.  T'nited  States 

3097 

McVey,  In  re 

2909 

V.   Wooters 

2857 

McWhorter  v.  McMalian 

3213 

Millsaps  V.  Pfeififer 

3195 

Mead  v.  Walker 

3175 

V.  State 

2997 

Meader  v.  Stone 

2819 

Milne's  Appeal 

3195 

Meadowcroft  v.  People                2964, 

2971 

Milton  V.  State 

3019, 

3035 

Mechanics'  Labor  Sav.  Bank,  In  re 

3183 

Miner  v.  People 

2795, 

2797, 

2874 

Mechanics'  &c.  Sav.  Asso.  v.  Farm- 

Minerva.  The 

3292, 

3293, 

3298 

ington  Sav.  Bank 

3229 

Minnehaha,  The 

3278 

Medis  V.  State 

3172a 

Minnie  C.  Taylor.  The 

3366 

Medler  v.  Albuquerque  Hotel  &c.  Co 

3236 

Mira  A.  Pratt,  The 

3355, 

3365 

Medrano  v.  State 

2871 

Mitchell  V.  Commonwea 

1th 

2766 

Meek  V.  State                                 2979, 

2981 

V.   McKinny 

3233, 

3235 

Meeker  v.  Warren 

3215 

V.   State             2703, 

2785, 

2848, 

2910 

Meeks  v.  State 

3044 

V.  Walker 

3226 

Meister  v.  People  2774,  2806,  2812, 

2813 

Mixon  V.  State 

2715, 

2720 

Mellor  V.  Thompson 

3285 

Mizell  V.  State 

3049, 

3051 

Melton  V.  State 

2784 

Mobley  v.  Dubuque  &c. 

Co. 

3206 

Memphis,  The 

3283 

V.   State 

3109 

Memphis  v.  Brown 

3218 

^loffat  V.  McDowall 

3211 

Memphis  &c.  Co.  v.  H.  C.  Yaeger 

Moffit  V.  State 

3068 

&c.  Co.                                         3372, 

3394 

Mogul  &c.  Co.  V.  McGregor 

2920, 

2951 

Menken  v.  Atlanta 

3171 

Molihan  v.  State 

3170 

Mentor,  The                       3295,  3296, 

3300 

Monarch.  The 

3372 

ISIercier  v.  Cotton 

3274 

Monnett  v.  Turpie 

3175 

Merrimac,  The 

3244 

Monroe  v.  People 

3171 

Merritt  v.  Brown 

3201 

V.   State 

3102 

Merritt   &c.   Co.   V.   North   German 

^lontag  V.  People 

3030 

Lloyd 

3366 

Montandon  v.  Doas 

3216 

Mersey,  The 

3341 

Montesquieu  v.  Sandys 

3213 

Mescall  v.  Tully 

3213 

Montgomery  v.  Bevans 

2867 

Messer  v.  State 

2899 

V.   Parker 

3066 

Messersmidt  v.  People 

3067 

V.   State            2732, 

2770, 

2779, 

3033. 

Messinger's  Appeal 

3225 

3074 

Methard  v.  State                           2725, 

2918 

V.  United  States 

272(! 

Methodist  &c.  Church  v.  Jaques 

3229 

Monticello,  The    3359, 

3360, 

3372, 

3380. 

Mettler  v.  People 

3172 

3388 

Metz  v.  State                                2725 

2918 

Montresser  v.  State 

3102 

Meux  V.  Bell 

3227 

Montross  v.  State 

3068 

Mexico,  The 

3371 

Moody  V.  People    2739, 

2741, 

2751, 

3092 

Meyer  v.  State 

3165 

V.   State 

2771 

Meyers  v.  State 

3028 

Moon  V.  State 

3014 

Mevers  &c.  Co.  v.  Emma  Kate  Ross, 

Moore  v.  Bruce 

3222 

The 

3381 

V.  Copp 

3177 

Micheaux  v.  State 

3055 

V.  Crawford 

3213 

Middaugh  v.  State 

3000 

V.  Dick 

3226 

Middlesex  &c.  Co.  v.  Albert  Mason, 

V.   Houston 

3419 

The 

3367 

V.   Hubbard 

3206 

Middleton  v.  State 

2786 

V.   Huntington 

3227 

Mifflin  v.  Commonwealth 

2931 

V.   Hylton 

3200, 

3205 

Miles  V.  Miles                                3198. 

3206 

V.   People 

2910, 

3035 

v.   State 

2727 

V.   Randolph 

3231 

V.  United  States                     2863, 

2874 

V.   Rawson 

3231 

Milk  V.  Moore 

3176 

V.   Shields 

2939, 

2944 

Miller  v.  Avery                  3193,  3196, 

3199 

V.   Simpson 

3176 

V.  Commonwealth     2785,  3002, 

3004. 

V.  State           2723. 

2731. 

2767, 

3006. 

3057 

3010,  3038, 

3039, 

3041, 

3075 

Vol.  4  Elliott  Ev. — iv 


TABLE    OF    CASES. 


[References  are  to  Sections.'\ 


ri8, 


2929, 


3292 


Moore  v.  United  States 

Moore's  Case 

Moores  v.  Bricklayers'  Union 

V.   Moores 
Moorsley,  Tlie 
Mora  V.  People 
Moran  v.  Liaudin 
More  V.  Bennett 
Morford  v.  Territory 
Morgan  v.  Field 

V.   Monmouth  &c.  Road  Co. 

V.  Nagodish 

V.  O'Daniel 

V.   Sim 

V.   State  2709,  2799,  2819. 

2984.  3003,  3015,  3114,  3116, 
Moriarty  v.  State 
Morning  Light.  The 
Morning  Star,  The 
Morrell  v.  People 
Morrill  v.  State 
Morris  v.  Morris  3211 

V.  People 

V.  State     2715.  2719,  2720. 
3026,  3029,  3053,  3063 


V.  White 


3198 


Morris  Run  &c.  Co.  v.  Barclay  iVcc. 
Co.  292(>, 

Morrison  v.  Durr  3198, 

V.   Hardin 

V.   Hart 

V.   Jones 
Morrow  v.  State 

V.   Turney 
Morse  v.  Hill 

Morten  v.  Five  Canal-Boats 
Morton,  The  3259,  3260, 

Morton  v.  Shoppe 

V.   White 
Moseley  v.  State 
Mosely  v.  Garrett 

V.   State  ^^^^ 

Moses  Taylor,  The  3239, 

Moses  V.  State 
Mosher  v.  Joyce 

V.   State  „„„„ 

Moslem.  The  3296, 

Motsinger  v.  State  2881, 

Mott  V.  Harrington 
Moyers  v.  Kinnick 

Mrous  V.  State  

Muir  V.  State  30  <  5, 

Mulford  V.  People  2962, 

V.   Williams 
Mulholland  v.  Ilendrick 
Mulhouse,  The 
Mullaly  V.  People 
Mullan  V.  United  States 
Mullen  V.  State 
MuUinix  v.  State 

Munkers  v.  State  3148, 

Muntz  V.  Raft  of  Timber 
Murdock  v.  State 

V.   Walker 
Murillo.  The 
Murio  V.  State 

Murphy  v.  Ramsey  2859 

V.   State  ^863,  3016,  3093, 


V.   Suliote,  The 

V.   People 
Murphy's  Case 
Murray  v.  Ferry-Boat 

V.   Johnson 

V.  ^MoOarigle 
Musgrave  v.  State 


3029 


2924,  2946. 


^Iiisgrove  V.  Lusk 

Mutual  Life  Ins.  Co.  v.  Blair 


2991 
3U52 
2951 
3214 
32G8 
3032 
3298 
2951 
3075 
3175 
30G6 
3246 
2821 
3367 
2981, 
3166 
3038 
3369 
3263 
3075 
2795 
3214 
2980 
2807, 
,  3130 
,  3204 

2951 
3201 
3199 
3174 
3215 
2780 
3213 
3199 
3367 
3264 
2823 
3196 
2908 
3197 
3172 
3249 
3134 
3234 
2988 
3299 
2887 
3226 
3214 
3153 
3090 
2972 
3221 
3214 
3366 
3052 
3404 
3020 
3168 
3152 
3352 
2840 
2951 
3274 
3114 
2870 
3094. 
3170 
3360 
3044 
2702 
3310 
3205 
2951 
2977. 
,  2982 
3231 
3208 


Mvers  v.  Commonwealth  3019 

V  State     2939,  2941,  3035,  3041, 

3102,  3107 

V.   Steel  Mach.  Co.  3213 


N 


3375,  3386, 

2791, 


3346, 
Co.  V.  Boston  &c.  R. 


3040, 


3225, 
3004, 


Xacoochee,  The 
Names  v.  Names 
Nanty.  'I'he 
Naples  (Jrant 
Nash  V.  Hunt 
Nashua  &:c.  R 

Co. 
National  &c.  Asso.  v.  Burr 
National  Bank  &c.  v.  Sprague 
National  &c.  Co.  v.  Dayton  &;c.  Co. 
National  &c.  Co.  v.  Interchangeable 

&c.  Co. 
Naugher  v.  State 
Nayler's  Case 
Neace  v.  Commonwealth 
Neal  V.  Briggs 

V.  Commonwealth 

V.   State 
Neall  V.  United  States 
Near  v.  Lowe 
Nece  V.  Pruden 
Needham  v.  State 
Neeld  v.  State 
Neely  v.  Jones 
Nelms  V.  State 
Nelson  v.  Pinegar  ^   ^ 

V.   State  3042,  3071,  3072, 

V.  Territory 
Nephi  Irr.  Co.  v.  Jenkins 
Neptune.  The  3306, 

Neto  and  Cargo.  The 
Neuman  v.  State 

Nevitt  V.  Clarke  3264, 

New  Brunswick  &c.  Co.  v.  Eden 
New  England.  The 
New  England  Bank  v.  Lewis 
New  England  &c.  Co.  v.  M.  Vander- 

cook.  The 
New  Gloucester  v.  Bridgham 
New  Haven  &c.  Co.  v.  Mayor 
New  Jersey,  The  3377, 

New   Jersey  &c.   Co.   v.    Merchants 

Bank 
New  Phoenix.  The 
New  York,  The.  v.  Rea 
New  York  v.  Walker 
New  York  &c.  Co.  v.  Calderwood 

V.   Philadelphia  &c.  Co. 

V.   Rumball 
New  York  Cent.  Trust  Co.  v.  Mad- 
den 
New  York  Ferrv  Co.  v.  Moore 
New  York  &c.  R.  Co.  v.  Wenger 
Newberry  v.  State 
Newcomb  v.  White 
Newell  V.  Norton 

V.   West 
Newfoundland.    The  3314, 

Newman  v.  Commonwealth 

V.   People  2726,  2901, 

Newport,  The 
Newsom  v.  State 
Newton  v.  State 
Newton   Rubber   Works   v. 

Casas 
Nicholas  v.  Commonwealth 

v.   State 
Nicholls  V.  State 
Nichols  V.  Commonwealth 

V.   People 


De   Las 
3036, 

3041, 


3389 
2794 
3335 
3347 
3235 

3221 
3174 

3227 
3225 

3195 
3041 
2891 
3101 
3232 
2999 
2843 
2991 
3236 
3234 
3170 
3009 
3221 
2864 
321 1 
3079 
3065 
3218 
3366 
3360 
3170 
3308 
3199 
3260 
3199 

3355 
3170 
3266 
3378 

3244 
3296 
3380 
3170 
3378. 
3379 
3378 
3378 

3218 
2969 
2951 
2975 
3232 
3263 
3236 
3332 
2951 
2908 
3375 
3049 
3018 


3221 
3043 
3093 
3024 
3035 
3050 


TABLE    OF    CASES. 


[References  are  to  Sections.'] 


Nichols  V.  State 

Nick  V.  Rector 

Nicliels  V.  Kane 

Niece  v.  Territory 

Nightingale  v.  Dodd 

Nimrod,  The 

Nims  V.  Nims 

Noddleburn,  The 

Noel  V.  Fitzgerald 

Noftsinger  v.  State 

Noland  v.  State 

Noles  V.   State 

Nonpareil,  The 

Noonan  v.  State 

Nordgren  v.  People 

Nordon  v.  Defries 

Nordstern 

Norris  v.  Island  City,  The 


2859, 
3296,   3299, 


2723, 
3041a 


3349, 
2984, 


V.   State 
North  Carolina  v.  Gosnell 

V.   Vanderford 
Northfield  v.  I'lymouth 
Northrop  v.  Flaig 

North  Star.  The  3244,  3247 

Norton  v.  State    2835,  3052,  3141, 
3143 
Norwich  Co.  v.  Wright 
Nostra  Signora  de  los  Dolores 
Noyes  v.  State 
Nuckols  V.  State 
Nuckolls  V.  Commonwealth 
Nugent  V.  State  3101,  3104 

Nulton's  Appeal 
Nunn  V.  Nunn 

O 


O.  C.  Hanchett,  The 
O'Blenis  v.  State 
O'Brian  v.  Fry 
O'Brien  v.  Commonwealth 


3026, 


2931,  2936,  2937, 


V.  Elliot  ni99, 

V.   People  3063, 

Ocala  Foundry  &c.  Works  v.  Lester 

Occidental,  The 
Ochs  V.  People 
O'Connor.  In  re 
O'Connor  v.  State 
Octavia.  The 
O'Day  V.  Conn 
Oder  V.  State 
Odin,  The 

O'Donnell  v.  People 
Ofifutt  V.  Scott 
Ogden  V.  State 


Ogemaw.  The 
Ogle  V.  State 
Ogletree  v.  State 
O'llare  v.  Downing 
Ohling  V.  Luitjens 
Old  Dominion  &c.  Co 
Oleson  V.  State 
Olinde-Rodrigues.  The 
Olive  Chamberlain,  The 
Olive  V.  State 
Oliver  v.  Commonwealth 

V.   State 

V.   WilhitP 
Olson  V.  T'nited  States 
O'Malley  v.  O'Malley 
O'Mara  v.  Commonwealth 

O'Meara  v.  State 
Omer  v.  Commonwealth 
O'Neal  V.  State 


2777,  2780,  3026, 
3132, 
3377, 
2774, 
2706, 


McKenna 
3097, 


2715 

3142 

3014. 


3020. 
3094 


31<;6 
3196 
32:{2 
28(!6 
3210 
3300 
3227 
3299 
3212 
2784 
2779 
3043 
3293 
3107 
3032 
32S9 
3347 
3351. 
3352 
3041a 
3020 
3172 
2867 
3195 
3251 
3142, 
3145 
32.54 
3347 
2931 
3001 
3002 
310,S 
3198 
3234 


3360 
3101 
3198 
3044. 
3036 
3201 
3065 
3211. 
3217 
329t> 
2038 
3419 
2984 
3244 
3175 
3000 
3346 
2938 
3213 
3042. 
3133 
3379 
2785 
3013 
3211 
3213 
2951 
3099 
3332 
329(! 
2721 
3146 
3041a 
3225 
2717 
3224 
3023. 
302t 
,  3095 
,  30:!9 
3166 


f)neale  v.  Commonwealth  2863 

One   Hundred  and   Eighteen    Sticks 

of  Timber  3252 

O'Neill  V.  I'errymann  3227 

v.   State  3143,  3146,  3148,  3153 

Ontario  Bank  v.  Schermerhorn  3213 

Orange  v.  State  3040 

Oratava.  The  3372 

Orpgi.n,  The  3371,  3376,  3381,  3;!N8 

OUeilly  v.  People  3074 

Orgain  v.  Kamsey  3177 

Orleans.  The  3257 

Ormau  v.  Barnard  3201,  3211,  3216 

Orme  v.  Commonwealth  3170 

<  )rmi)nd  v.  Hutchinson  3193 

Ormsby  v.  People  2721,  2786,  2940,  2942 
Ormsley  v.  I'eople  2941 

Orne  v.  Townsend  3259,  3300,  3301. 

3315,  3316 
Orr  V.  People  2921,  294S 

Orrwein  v.  Commonwealth  2728 

Osborn  v.  State  2745 

V.   United   States  Bank  3206 

Osborne  v.  People  2917 

Osceola,  The  3292 

Osgood  V.  State  3092,  3093,  3096 

Osiris,  The  3267 

Osseo,  The  3382 

(^stenson  v.  Severson  3215 

Ottawa.  The  3380 

Otter.  The  3386 

Overly  v.  State  2988 

Ovprton  V.  State  2874 

Owens  V.  State  2799,  2802.  2874,  2921. 
2934,  2937,  2939,  2941.  3105,  3221 
Oxley    Stave    Co.    v.    Coopers'    &c. 

Union  2951 


Pacific.   The 
I'aciflc  &c.  Co.  v. 
Padgett  V.   State 
Page  V.   Sheffield 

V.   State 
Paine's  Case 
Painter  v.  Ives 

V.   People 
I'airo  V.  Bethell 
Palermo.  The 
Palmer.    The 
Palmer  v.  Lawrence 

V.   People 
State 


3296 

Gentry     2941,  2944 

2841,  3009 

3292 

3041a 

3075 

3419 

2720,  3026,  3035,  3036 

3175 

3289 

3267 

3175 

3043 

3172 


V.   Van  Doren  3210 

Pal  more  v.   State  3038 

Palmyra.  The  3269 

Pankey  v.   People  3070 

Pannell   v.    State  3170 

Pardee  v.  De  Cala  3196 

Parisian  Comb  Co.  v.  Eschwege         3217 

Park  &c.  Co.  v.  National  &c.  Asso.  2920 

Parker  v.  Beavers  3213 

V.  Commonwealth  303,8 

V.   Concord  3200 

V.   Nickerson  3226 

V.   People  2990.  3063,  3065 

V.   Phetteplace  319S 

V.   Safford  3211 

V.   Simpson  3227 

V.   State    2727.  2861.  2863.  2866.  2867. 

2868.  2869.  3035.  3052,  3099,  3170 

Parkinson   v.   People  3105 

Parks  V.   State  2794.   2797.   31.53 

Parrish  v.   Pensacola  &  A.   R.   Co.     3213 

V.   State  2732.  3014,  3024 

Parsons  v.  Brown  2S52 

v.   State  2728,  2852,  2856,  3007 

I'artain  v.   State  3082 


m 


TABLE   OF    CASES. 


[References  are  to  Hections.'] 


Paschal  v.  State 

Pat  V.  State 

Pate  V.   State 

Patterson   v.    Commonwealth 

V.   Gaines 

V.   Hayden 

V.   State 
Pattison  v.   Hull 
I'atton  V.   State 
I'aulding  v.  Watson 
Paiilk  V.  State 
Pawashick,  The 
Payne  v.  Danley 

V.   State 

V.  Western  &c.  Co. 
Payner  v.  Commonwealth 


Payson  v.   Everett 


3023 
3110 
3026 
2786 
3190 

3141,  3147 

3059a,  3170 

3225 

2939,   2943,   2944 

3199 

3095 

3258 

3178 

3037,  3059a,  3119 

2929,  2951 
2742. 

2744,  2747 
2959 


Peacock   Distillery   Co.  v.    Common- 


wealth 
Pearce  v.   Foster 

V.  Territory 
Pease  v.  State 
Pearson  v.  Darrington 

V.  Yewdall 
Peak  V.  State 
Peaks  V.  McAvey 
Peck  V.   Hunter 

V.  Metcalf 

V.  State 
Peckham  v.  Armstrong 

V.  Bnffam 

V.   Van   Bergen 
Peden  v.  Cavins 
Peerless.   The 
Pefferling  v.  State 
Pegasus,   The 
Peile  V.   Stoddart 
Peirce  v.  West 
Pelts  V.   State 
I'emberton  v.  State 


3064 
3289 
2774 
2848 
3225 
3431 
3068 
3211 
8199,  3201,  3211 
3234 
2705 
3177 
3213 
3175 
3175 
3253 
3098 
3373 
3286 
3200 
3115 
3007 


Pence  v.   State  3055,  3056,  3172 

Pendleton    v.    Commonwealth  2993 

Penhallow  v.  Doane         3258,  3260,  3272 
I'ennington  v.  Gittings  3199 

Pennsylvania,   The  3263,    3370, 

3375,  3386,  3389 
Pennsylvania   v.   Halderman  2995 

Pennsylvania  Co.  v.  Cole  3201 

Pensoneau  v.  Pulliam  3206 


3P1 

e  V.  Abbott 

2759, 

3095, 
3102 

3101. 
3104 

V. 

Adams 

2984 

3004 

v. 

Ah  Chung 

2707 

V. 

Ah   Fung 

3026 

V. 

Ah   Sam 

2956 

2997. 

3046 

V. 

Ah  Sing 

3087 

V. 

Ah  Woo 

2997 

V. 

Aiken 

2709 

2713, 

2766 

V. 

Aleck 

2944 

V. 

Allender 

2728 

V. 

Altman 

2994 

V. 

Alviso 

2708, 

3046 

V. 

Ames 

2786 

V. 
V. 

V. 
V. 

Ammon 
Anderson 
Ardell 
Armstrong 

3121 
3038 
2786 
2714 

V. 
V. 

Arnold        2924, 
Aro 

2925, 

2931, 
2948, 

2946, 
3041 
3024 

V. 

Ashe 

2721 

V. 

V. 

P.ahr 
Baird 

3172a 

2720 

V. 

Baker          2717, 

2757, 

2873, 
2981, 

2975. 
2998 

V. 

Baldwin 

3098, 

3107 

V. 

Barker 

3027 

V. 

Barondess 

2951 

People  V.  Barrett 
V.   Barric 
V.   Barry 

V.   Barthleman  3026, 

V.  Batherson 
V.  Batting 
V.   Bauman 
V.   Bearss 

V.   Becker  3130, 

V.   Beckwith 
V.   Behee 
V.  Belencia 
V.   Bell 
V.  Bemis 
V.   Bene 
V.   Bendit 

V.   Benham  3026, 

V.  Bennett  2719, 

V.   Benoit 
V.  Benson 

V.  Bentley  2936, 

V.  Bernor 
V.  Beverly 
V.   Bibby 

v.   Bidleman  2720,  2968, 

V.   Bielfus  2910, 

V.   Bird 
V.   Bishop 

V.   Bissert  2902, 

V.   Blake 

V.   Blanchard  2978, 

V.  Block 

V.   Bolanger  2785, 

V.   Bosworth 

V.  Bowen  2720,  3103, 

V.   Braisted 

V.   Braman  2883, 

V.   Brandt 
V.  Bransby 
V.   Brewer        2753,  2755,  3143, 


V.  Brigham 

V.  Bristol 

V.  Brotherton 

V.  Broughton 

V.  Brown 

V.  Brunt 

V.  Bryant 

V.  Buchanan 

V.  Buckland 

V.  Buckley 

V.  Burt 

V.  Eurtleson 

V.  Burton 

V.  Burwell 

V.  Bushton 

V.  Butler 


2934, 

2864, 

3026,  3063, 


3096, 
2786,  2924. 


V.  Butts 

V.  Call 

V.  Callaghan 

V.  Calder 

V.  Caldwell 

V.  Calvert 

V.  Camp 

V.  Campbell 

V.  Cannon 

V.  Caniff 

V.  Carey 

V.  Carrier        2741,  2742. 

V.  Carroll 

V.  Carter 

V.  Cassidy 

V.  Cease 

V.  Chadwick     2785.  2787, 

V.  Chase 

V.  Chaves 

V.  Chicago  &c.  Gas  Co. 


3104, 
2925. 


3049, 
3022, 


2735. 
3041, 


2744, 
2750, 
2999, 

2814, 

2956, 

2920, 


2730 

2787 
3080 
,  3040 
3102 
3015 
2964 
2779 
,  3140 
2706 
2980 
3019 
2728 
3036 
3107 
2997 
.  3036 
2942 
3168 
3101 
,  2939 
3095 
3032 
2994 
2969 
2914 
2994 
2816 
2906 
2996 
2984 
2912 
2787 
2786 
3105 
3171 
2885 
2757 
2828 
3145. 
3146 
2997 
2745 
2995 
2800 
2995 
3035 
2982 
30R5 
2778 
3046 
2715 
3064 
2816 
3168 
3022 
2938. 
3107 
2971 
3050 
3030 
2862 
3171 
2914 
2737 
3056 
2703 
2912 
2715 
2749. 
2756 
3002 
2970 
2816 
3168 
2997 
2873 
3036 
2951 


TABLE   OF    CASES. 


liii 


[References  are  to  Sectiona.1 


People  V.  ChoynskI  2880, 

V.  Chu  (juong 
V.  Cipperly 

V.  Clark  2755,  2796,  2924, 

3143,   3145,  3146,   3147,  3148, 

V.  Clarke 

v.   Clarkson 

V.  Clausen 

V.   demons 

V.  Cleveland 

V.  Cline 

V.   ('lough 

V.  Cobler 

V.   Cole 

V.  CoUetta 

V.   Commonwealth 

v.   Connor 

V.  ("onroy 

V.  Constantino 

V.   Cook  2750,  2756,  3041a 

V.  Cooper 


3113 


2978,  2979 

2770 

2829 
3018 


Corbin 

Cornelius 

Courier 

Courtney 

Cowgill 

Cox 

Craig 

Cramer 

Crego 

Cronk 

Crowley 

Croswell 

Cruger 

Cummins 

Cunningham 

Curley 

Curtis 


2786, 
2707 


3097 

2910,  3092 

3050 
2729 
3064 
2714.  2912 
3029,  3035. 
3085 


Cutler 

D'Argencour 
Dailev 

Daniell  3398 

Daniels  2934 

Davis  2770,  2792,  2796. 

2958 
Dawell 
De  Coursey 

De   Fore       3141,   3143,  3148 
De  Kroyft 
De  Lav 

De  Leon       2737,  2738,  2741 
De  Winton 
Dean 
Decker 
Demousset 
Deschesseri 
Devine 
Dice 

Dickerson 
Dickie 
Diniick 
Dixon 
Dohring 
Dolan 
Dole 
Dorthy 
Doty 

Dousrherty 
Dowling 
Downs 
Doyle 
Driscoll 
Druse 
Dunn 
Duncan 
Durrant 
Dyer 


3026 
2745,  2750 


3035 


2939 


2750, 
2991,  2995, 


2720.  3057. 
3014,  3015, 


2784, 
3099, 


2887 
2735 
3165 

3141, 

3151, 
3153 
3043 
2854 
3114 
3100 
2724 
3059 
2786 
2965 
3052 
3098 
2786 
3117 
3024 

3041a 
3120 
2856 
2720 
3107 
3092 
3080 
3039 

,  3028 
3101 
2731 

,  3104 
2916 

,  3093 
3169 

,  3054 

,  2745 
3066 

,  2915 

3041a, 
3171 
3000 
2997 
2720 
3427 
2947 
2956. 
2997 
2873 
2963 
3153 
2905 
2971 
2751 
2806 
3054 
3035 
2756 

3172a 
3037 
3043 
3095 
2990 
3057 
2942 
3007 
2752 
2097 
2060 
31  IS 
2072 
3059 
3022 
3055 
30'^0 
303S 
30.-i3 
3107 
3028 
2924 


People  V.  Dyle 
V.   Eaton 
V.  Kastwood 
V.   i;bel 
V.  Edwards 
V.   Eichler 
V.   Ellen  wood 
V.   Elliott 
V.   Elmer 
V.   Etter 
V.   Evans 
V.   lOverhardt 
V.   Faber 
v.   Fagan 
V.   Fairchlld 
V.   Farrell 
V.   Feilen 
V.   Fellows 
V.   Ferguson 
V.   Fick 
V.   Fish 
V.   Fisher 
V.   Fitch 
V.  Fitzgerald 
V.   Flack  2716, 

3095, 


2805,  2810, 


2881, 


2717, 


2717, 
2927, 
3099: 


V.  Flaherty 

V.  Flanagan 

V.  Fletcher 

V.  Flock 

V.  Flynn  2910,  2914. 

3096,  3098,  3102, 

V.  Foley 

V.  Fong  Chlng  2899, 

V.  Foo 

V.  Forbes 

V.  Fournier 

V.  Fowler         2720,  2739, 


V.  Fox 

V.  Frank 

V.  Fultz 

V.  Furtado 

V.  Gage 

V.  (iallagher 

V.  Garbutt 

V.  Gardner 

V.  Garnett 

V.  Garrahan 

V.  Gastro 

V.  Gates 

V.  Geiger 

V.  Genung 

V.  German 

V.  Getchell 

V.  Gibbs 


2863, 
2882. 
2990, 
2786, 


2786, 


2787, 
2866, 


2744, 
3027, 


2709, 
2921. 
2938, 
3101, 


2916. 
3103, 
2720, 
2902, 


2752. 
2792, 


2954 


2729 


2795,  2797, 
2939, 


2977, 
2940, 


2975,  2978, 


3070, 
2981, 


Gibson 

Gillian 

Gillis 

Girdler 

Glassman 

G  lea  son 

(ilover  3033,  3095,  3096, 

Gold  Run  &c.  Co. 

Gonzalez 


V.  Gordon 

V.  Gosset 

V.  Gotshall 

V.  Gould 

V.  Goulette 

V.  Griiney 

V.  Grauer 

V.  Gray 

V.  Greenfield 

V.  Greenwall 

V.  Griffin 

V.   Griffith 


2717,   2877. 
291.5, 


3027. 
2725, 


2778. 

2917. 
2886. 
2919. 


2T«6 
2815 
2729 
3005 
3105 
2888 
2996 
3011 
2732 
3105 
3044 
2994 
2873 
2918 
2808 
2958 
2867 
2729 
3172 
2746 
3044 
2951 
2997 
2719 
2925. 
2947 
3103 
2853 
3115 
2968 
3093. 
3104 
3129 
2908 
2705 
3000 
2813 
2756. 
3105 
3090 
2994 
3105 
3029 
3099 
2963 
3038 
2885 
2784 
2976 
3065 
3068 
2942 
2982 
3071 
29. S  2 
3141, 
3151 
2917 
2881 
.3049 
^'792 
3169 
2721 
3009 
3064 
3044 
2855 
3002 
2816 
31 53 
310.-, 
2705 
3101 
2069 
301 3 
3043 
2914. 
30.55 
2910 


Uv 


TABLE    OF    CASES. 


3101, 


2975, 


3426, 


P«ople  V.  Grimes 
V.  Griner 
V.  Gross 
V.  GroHsman 
V.  Guidici 
V.  Haggerty 
v.   Hall 
v.-  Halliday 
V.  Hainberg 
V.   Hanaw 
V.  Ilandley 
V.  Ilannon 
V.  Hanselman 
V.   Harlan 
V.   Harris' 
y^  Hartman 
V.  Haver 
V.   Hawes 
V.   Hawlcins 
V.   Hayes 
V.   Haynes 
V.   Hecker 
V.  Hendrickson 
V.  Henry 
V.  Henssler 

V.  Herrick 

V.  Hess 

V.  Hettick 
v.  Hicks 

V.  Hitclicock 

V.   Hodgkin 

v.   Hodnett 

V.   Hoffman 

V.  Holbrook 

V.  Holmes 

V.  Hong  Ah  Duck 
V.  Hong  Quin  Moon 

V.  Honshell 

V.  Hooghkerk 

V.  Hope 

V.   Horton 

V.  Howard 

V.  Howell 

v.  Hul)bard 

V.  Hughes 

V.  Hulbut 

V.  Humphrey 

V.  Hurley 

v.  Hurst 

V.  Husband 

v.  Imes 

V.  Irwin 

V.  Tsham 

V.  Ivey 

V.  Jackman 

V.  Jackson        2714,  2972, 

V.  Jacobs 

V.  Jaehne 

V.  Jan  John 

V.  Jenness 

V.  Johnson      2722.  2962, 
3024,  3026,  3044,  3095, 
V.  Johnston 
V.  Jones 

V.  Jordan 
V.  Josselyn 
V.  Kamaunu 
V.  Kane 
V.  Katz 
V.  Kearney 
V.   Keofer 
V.  Keep 
V.  Kehoe 
V.   Keith 
V.  Kelly 

V.  Kennedy 
V.  Kern 


{^References  are  to  Sections.1 


People  V.  Kerr 


2902, 


2939, 


3141 
2863,  2941, 


3040 
3041a 
3035 
3118 
2707 
2808 
312i» 
8041 
2975,   29S(> 
2971 
2808 
2918 
3054 
3093 
3105,  3140 
3108 
2720 
3030 
2967,  2971 
3089 
2981,  2984 
3036,  3041 
2796,  3055 
2917 
2976 
2981,   2984 
3041 
2728 
3130.  3134 
3079 
3172a 
3165 
3427.   3431 
2993 
2938 
3035 
2980,   2981 
2818 
2785 
2910,   2916 
3066,  3067 
3040 
2989 
3141 
2806.   3132 
3170 
2S63 
3059,   3116 
2962,   2972 
3055 
2802,   2863 
2944,   3024 
2801 
2732 
3169 
3062,  3066 
2978 
2899,  2907 
3083 

2756,  2796 
2972.  2977. 

3096,  3101 
3041a 
2995.  3036 
2973,  2978 
2760,  2769 

2714 
3148,  3172 

2774 

2757,  3152 
2788 
2715 

,  3146,  3153 

3107 

2942.  3131. 

3139 

3020,  3043 

3026 


2901,  2902,  2904,  2905, 
2943 


V.   Kibler 

3165 

V.   Kief 

2779 

V.   Kiley 

3117 

V.   Kilvington 

3024 

V.   King 

2995 

V.  Kingsley 

2992 

V.   Kirby 

301 6 

V.   Knapp 

2783.   2855 

V.   Knight 

3101,  3104 

V.   Koller 

3168 

V.   Kostka 

2951 

V.   Kraker 

2785,  3120 

V.   Kropp 

3170 

V.   Krusick 

3142 

V.   Kunz 

3102 

V.   Lagrille 

2960 

V.   Lamb 

3038 

V.   Ivambert 

2862, 

3099,  3103 

V.   Lane 

2719 

V.   Langton 

3014 

V.   Larnc'd 

2917 

V.   Larsen 

2786 

V.   Larubia 

3036 

V.   Lattimore 

2733.   2813 

V.   Laurence 

3056 

V.   Law 

3034 

V.   Ledwon 

2732 

V.   Lem  You 

3073,  3079 

V.   Lennox 

2982 

V.   Lennon 

3041a 

V.   I>enon 

3096, 

3097,   3102 

V.   Leonard 

2968 

V.   Levine 

2816 

V.   T-evison 

3114.   3120 

V.   Lewis 

3041a 

V.   LMley 

2817. 

2822,   2826 

V.   Liohardt 

2726, 

2906,  2908 

V.   To<k  Wing 

3063 

V.   Longwell 

3170 

V.   l/oomis 

3052 

V.   I  opez 

2718 

V.   I  vons 

3044 

V.   Ma  card        3043. 

3071, 

3077,  3078, 

3082. 

3084,   3085 

V.   Mackinder 

3136,   31.39 

V.  jNIackinley 

3053 

V.   ^lahaney 

3165 

V.   Maher 

3066 

V.   >'a.iors 

3029 

V.   Mai  lory 

3064 

V.   Maloney 

3117 

V.   March 

3023 

V.   Markham 

2901 

V.   ?'arks 

2915 

V.   I\farion 

2723,  2991 

V.   Marshall 

2750,  3023 

V.  >Tartin 

2974 

2980,   2982 

V.   Mnrtinez 

3024 

V.   ^father 

2046,   2948 

V.   Manch 

3065 

V.   Maxwell 

2706.   3087 

V.  Mayes 

3097 

,   3099,   3104 

V.  Mayne 

3095 

V.   McKay 

3036 

V.  McCarthy 

2855 

V.   McClure 

3115 

,    3117,   311S 

V.   McOord 

2726 

,   2910,   2912 

V.   McCurdy 

3044 

McDonald  3016,  3050,  3056.  .SO'H 
McDonnell  2952.  2956 

McDowell  2762,  2706,  3029,  3044, 
3169 
ISR-Padden  3024 

McGarrv        2902,  2904.  2905 
McGilver  2917 

McGinty  3129 


TABLE    OF    CASES. 


Iv 


[References  are  to  Sections.] 


People  V.  McGonegal 
V.   Mcfiuire 
V.   McKane 
V.    McKennan 
V.   McKinney 
V.   McKenzie 
V.   ]\IcLean 
V.   Mc.Makin 
V.   McXiitt 
V.   McWhorter 
V.   Mead 
V.   Melvane 
V.   jNlendenhall 
V.   ISIetliever 
V.   Meyer 
V.   Meyers 
V.   Milgate 
V.  Milk  Exchange 
V.   Miller  2729, 

3054, 
V.   Millspaugh 
V.   Miner 
V.   Minisci 
V.   Mitchell 
V.   Mize 
V.   Medina 
V.   Molineux 
V.   Molins 
V.   Montague 
V.  Montarial 
V.   Monteith 
V.   Montgomery 
V.   Mooney 
V.   Moore 
V.   Morales 
V.   Moran 
V.   Morehouse 
V.   Morgan 
V.   Jlorrigan 
V.   Morse 
V.   Morton 
V.  Mosher 
V.   Most 
V.   Muller 
V.   Munn 
V.   Murphy 
V.   Murray 
V.   Naylor 
V.  Nearv 
V.   Nelson         3130, 


2817 
2818 


2868 


2841, 
3056, 


2997, 
2952, 

3013, 


3137, 


v..  Neufeld 

V.  Newberry 

V.  Noeike 

V.  Nolte 

V.  Northey 

V.  Neumann 

V.  Nunley 

V.  O'Loughlin  2951, 

V.  O'Neil  2786,  2900, 

V.  O'Neill 

V.  OSullivan 

V.  oicott 

V.  Odell 

V.  Ogle 

V.  <»Idham 

V.  oimstead 

V.  OKsen 

V.  Olson 

V.  Orr 

V.  Oscar 

V.  Owens 

V.  Oyer  and  Terminer 

V.  Page  2757, 

2954,  2972,  3093, 

V.  Pallister 

V.  Palmer 

V.  Parker  2939, 


2767,   2771 
3035,   3036 

2721,  2948 
3120 

2908,  2909 
,  2X24,  2820 

2722,  3101 
,  2819,  2829 

2917 
3093 

2721,  2917 
2786 
2804 
2733 

2872,  30.-.  1 
2704 
3014 
2951 

2935,  3048, 

3102,  3172a 

3147 

3103 

3029,  3044 

3036,  3042 
3015 
3129 
2720 

2954,  295,S 
2792 
3050 
2729 
2724 
3040 

2817,  2S37 
302.S 

3032.  3040 
2829 
3020 
3134 
3056 
2915 
2860 
3120 
3068 
3038 

2714,  2810 
3108 
3090 

3020,  3022 

3141,  3145, 
3153 
3028 
2779 
3011 
3091 
2903 
2732 
3053 

3122,   3127 

2902,  2904. 
2906 

2723,  2816 
3105 
2935 
3015 
2786 

3130,  3138 
2770 
3172 

2929,  2931 
3151 
29,S2 
2719 
29T!» 
2953. 
3  ion 
3137 

27n,s 

2942 


29.5'^ 
3102, 


2941, 


People  V.  Parmelee 
V.   Parshall 
V.   I'atterson 
V.    Payne 
V.   Peacock 
V.   I'eckens 
V.    Pendh'ton 
V.    Pcrriiiiaii 
V.   Petlieram 
V.   Phelan 
V.   Phelps 
V.   Phillips 
V.   Phir)ps 
V.    Pichctte 
V.    Pierpont 
V.    Pinckney 
V.   Pitcher 
V.    J'lafc 
V.    I'larh 
V.    Pollock 
V.    Pool 
V.   Porter 
V.    Powell 
V.   Pray 
V.  Quanstrom 
V.   Quick 
V.   Radt 
V.   Rae 
V.    Randolph 
V.   Raten 
V.   Rathbun 
V.   Ratz 
V.   Rector 
V.   Reed 
V.   Reynolds 
V.   Rice 
V.   Richards 
V.   Ritchie 
V.   Roach 
V.   Robertson 
V.   Robles 
V.   Rodawald 
V.   Rodrigo 
V.   Rogers 
V.   Rolfe 
V.   Romano 
V.   Ross 
V.   Rowel  1 
V.   Royal 
V.    Royce 
V.   Ruggles 
V.    Rush 
V.   Rushing 
V.   Russell 
V.  Ryan 
V.   Ryland 
V.   Sal  rose 
V.   Salsbury 
V.   8am   Lung 
V.   Samonset 
V.   Sanchez 
V.   Sands 
V.   Sansome 
V.   Saunders 
V.   Sea  la  micro 
V.   Schaeffer 
V.   Schievi 
V.    Schooley 
V.   Scliryver 
V.   Scott 
V.   Sconten 
V.    Seaman 
V.   Soeley 
V.    Sessions 
V.   Shainwold 
V.   Shanley 
V.   Sharp 


717 


2744, 


2924, 


2889, 


28n 


2934, 


2741, 


V.   Shea 


2906, 


3036 

2745 

31  OS 

2851 

2.S53 

2;in(; 

2!»7X 
3100 
2.st;;{ 

2924 

2948 

2!)51 
3044 
2763 

2995 

2997 
271.3 
2727 
3120 
2980 

2939 

3120 

3026. 

3043 

2745, 

2757, 

27.S6 
2907 
2783 

2894. 

3087 

2927, 

3038, 

3040 
2979 
2874 
2717 
2942 
3050 
3094 
3023 

2724. 

2997 

3095, 

3108 
3024 
2984 
2978 
2979 

2925, 

2935, 

2948 
3169 
3103 
3105 
3058 
3038 
2.K.-,5 

2729, 

3043 
2715 
3137 

2841. 

3070 

2715. 

2916 

3107. 

3141 

2909. 

2970 

2890. 

2892, 

2,S96 
3171 
2996 
3005 

2822, 

2829, 

3148 
2786 
2903 
29(15 

3002. 

3005 

3145, 

3148 
3017 
3069 
3138 

2938, 

2946, 

3005 

3099, 

3100, 

31(»3 
3165 
3033 
3114 
3022 
2814 
3104 
2720 

2742, 

2750, 

2751 

2759, 

2767, 

2768 
2812 

2S47, 

2.*^  5  5 

2720. 

2902, 

2989, 

2991, 

2995 

2721, 

3043, 

3101 

Ivi 


TABLE   OF   CASES. 


[References  are  to  Sections.'] 


jople  V.  Sheldon    292 

0,  292( 

5,  2947 

,   2951 

V.   Shelters 

2983 

V.   Shepardson 

2784 

V.   Sheppard 

3095 

V.   Shuler 

2709 

,  3170 

V.   Simpson 

2808 

,  3036 

V.   Slack 

2729 

,  2861 

V.  Slayton 

3055 

V.   Sliney 

3046 

V.   Smith          2786. 

28.52, 

2911, 

2951. 

2982,   3027 

3043 

3044 

3172 

V.   Solomon 

3114 

V.   Squires 

3143 

3147 

V.   Stanley        2715, 

2722 

2943 

2944 

V.   Stark 

3169 

V.   Stephens 

2929 

2931 

V.   Stephenson 

2904 

V.   Sternberg 

2786 

V.   Stetson 

2982 

V.   Stevens 

2942 

3172 

V.   Stewart       2721, 

3099, 

3102 

3103 

V.   St.  Louis 

3067 

V.  Stoddard 

2995 

V.   Stokes 

3169 

V.   Stone 

2929, 

2931 

3053 

V.   Stott 

2744 

2752 

V.   Stout 

2720 

V.  Strassman 

3087 

3091 

V.   Strybe 

2786 

V.   Sully 

2980 

V.   Summers 

2976 

V.   Swalm 

3055 

V.   Swetland 

2989 

2992 

2993 

V.   Taggart 

2910 

V.   Tamkin 

3041 

V.  Taugher 

3050 

V.   Taylor 

2911, 

3041 

V.  Terwilliger 

3102 

V.  Thacker 

2720 

V.  Thomas 

2982 

V.  Thompson 

2880, 

2881 

V.   Thoms 

2955 

V.   Thomson 

3036 

V.   Tibbs 

3149, 

3151, 

3153 

V.   Tidwell 

3022 

V.  T'prney 

3099 

V.  Tilley 

3115 

V.  Titherington 

2725 

V.   Tomlinson 

2967, 

3048, 

3050 

V.   Tompkins 

2978 

V.   Tonielli 

2882 

V.  Townsey 

2706 

V.  Travers 

2729 

V.   Travis 

3074 

V.  Tucker 

3057 

V.   Turner 

2874, 

2990 

V.   Tweed 

2931 

V.   Tyler 

3247 

V.   Valencia 

3024 

V.  Van  Allen 

3397. 

3401. 

3419, 

3427, 

3431 

V.  Van  Alstyne 

3148 

V.  Van  Dam 

2721 

V.   Vanderbilt 

3067 

V.   Van  Ewan 

2967, 

2969 

V.  Vann 

3095 

V.   Vasalo 

2807 

V.  Vedder 

2767 

V.  Wade 

3153 

V.   Wads  worth 

2972 

V.   Wah   Lee  Mon 

2744 

V.   Wakely 

2973, 

2976, 

2984 

V.   Walker 

3140 

V.  Wallace 

3142, 

3148 

V.   Walsh 

2951 

V.  Ward 

2709 

V.   Warren 

2964 

V.   Wasservogle 

2976 

V.  Watson 

2982 

2871, 


2705, 
3018,  3021, 


People  v.  Webster 
V.   Weed 
V.   Weithoff 
V.  Weldon 
V.   Welsh 
V.  West 
V.   Westbrook 
V.  Westlake 

V.   White  2721,   2952,   2955, 

V.   Whiteman 
V.  Whitson 
V.  Whittemore 
Wieger 


V.  Wiley 

V.  Willard 

V.   Willett 

V.  Willey 

V.  Williams 

V.  Willis 

V.   Wilson 

V.  Wilzig 

V.  Wing 

V.  Winslow 

V.   Winters 

V.  Wixon 

V.  Wolcott 

V.  Wolf 

V.   Wong  Chong  Suey 

V.  Wood 

V.   Woodward 

V.  Woody 

V.  Worden 

V.   Worthington 

V.  Wright 


3114. 
2715, 

2702,  2786,  2979, 
2929,   2931, 


2976. 
2717,  2910,  2911, 


2719, 
2719, 
2706, 


2704. 

3025. 

3027,  3028, 


V.  Wyman 

V.  Yokum 

V.  Young 

V.  Yslas 
Perault  v.   Rand 
Perdue  v.   Brooks 
Peri   V.    People 
Perkins  v.    Nichols 

V.   Pendleton 

V.   People 

V.   Rogg 

V.   State 

V.   Stein 
Perry  v.   Edwards 

V.   State 

V.   Sullivan   &c.    Co. 
Peter  v.  Wright 
Peterhoff,   The 
Peters  v.  United  States 
Peterson  v.   Grover 

V.   State 
Pettibone   v.    United    States 
Pettis  V.  State 
Pettit  V.  Grand  Junction 

V.   State 
Pewabie  Min.  Co.  v.  Mason 
Peyton  v.  Green 

V.   State 
Pfefferling  v.  State 
Pfomer  v.   People 
Phantom.  The 
Pharis   v.    Leachman 
Phelps  V.  Elliott 

V.   People 
Philadelphia's  Appeal 
Philip  Minch.  The 
Phillips's  Appeal 
Phillips  V.  Edsall 
V.   People 
V.  Richardson 

V.   State    2806.  2807,  3025,  3026. 
3035.  3036,  3102,  3141,  3148, 
V.  Tucker 
Phimpton  v.  Town  of  Somerset 


2715. 

2824,   2826. 

3419, 


2931. 
3043. 

2817,  2818, 

2916,  2978, 
3323,   3326, 


29?1. 
3038, 

3036. 


2972,   3050, 


3218, 


3042 
2873 
2999 
3111 

2722 
3165 
2874 
2964 
3126 
2994 
3139 
2887 
2980 
3115 
3119 
2723 
3070 
3052 
2948 
2725 
2951 
3095 
2978 
3043 
2774 
2916 
3014 
2725 
2918 
293T 
3132 
2732 
3042 
3026. 
3065 
2968 
3036 
3044 
2827 
3426 
3221 
3016 
3200 
2951 
2995 
2951 
3129 
2836 
3171 
3038 
3236 
3199 
3340 
3073 
321 5 
30SS 
2924 
8066 
3066 
3044 
3191 
3216 
30]  3 
3099 
30-24 
3356 
3204 
3213 
30.55 
3200 
3372 
3226 
3175 
2720 
3199 
3027. 
3150 
2774 
3175 


TABLE   OF   CASES. 


Ivii 


[References  are  to  Sections.'] 


3307 


2729 
3151 
3226 


3378,  3380, 


Phlpps  V.  State 

Phoebe,  The,  v.  Dignum  3307 

Phoenix  &c.   Ins.   Co.  v.   Ilinesley 

3212, 

V.  Moog  2939,  2940, 

Pickerel  v.  Commonwealth 
Picliering  v.   Day 
Piehl  V.  Balchen 
Pierce  v.   Indseth 

V.   Prude 
Pler.son  v.  Meaux 

V.   State 
Pigg  V.   State 
Pigman  v.  State 
Pilce  V.   State 
Pilkington  v.   Gotten 
Pilkinton  v.   State 
Pilot  Boy,  The 
Pinckord  v.  State 
Pinder  v.  State 
Pine  Forest.  The 
Pinneo  v.  Goodspeed 
Pinney  v.  Pinney    3198, 3211,  3213, 
Pinson  v.   Williams 
Pinter,  In  re 

Pioneer,  The  3293, 

Pioneer  Gold  Min.  Co.  v.  Baker 
Piper  V.  Brown 
Pitner  v.    State 
Pittenger  v.  Pittenger 
Pitts  V.  State 
Pizarro,  The 
Place  V.  Minster 
Plake  V.   State 
Plant  V.  State 

V.  Woods 
Planter,  The 
Plasters  v.   State 
Platter  v.   Elkhart 
Pleasant  v.  State 
Pleasonton  v.  Raughley 
Plummer  v.   Ossipee 

V.   State 
Plunkett  V.  State 
Plymouth  Rock,   The 
Poe,    In    re 
Polin  V.  State 
Poling  V.  Huffman 
Polinsky  v.   People 
Polk  V.  State 


2708, 
3332, 

2706, 

2920, 
3243, 


3099, 


3356,   3359, 
3028, 


2728,  27 
2785,  3145,  3151, 
Pollard  V.  People  3080, 

V.   State  2727,    3093, 

Poison  V.  State  3098,  3099, 

Pomeroy  v.   State  3092, 

Pomona,   The 
Pond  V.   Pond 
Ponder  v.   State 
Pooler  V.   State 
Pope  Catlin.  The 
Pope  V.   Allis 

V.   Sapphire,  The 
Popinaux  v.   State 
Porath  V.   State 
Port  V.  Port 
Porter  v.  Commonwealth 

V.   Rutland   Bank 

V.   State  2975,  3000,  3020, 

V.  Stone 

V.  T'nited  States 
Porterfield  v.  Commonwealth 
Portis  V.  State 
Portoues  v.  Holmes 
Post  V.  Jones 

V.  Toledo  &c.  R.  Co. 
Poston  V.  State  2777, 

Potomac.  The 
Potorf  V.  Fishback 
Potsdamer  v.  State 


3040 
3317 

,  3213 

,  1^941 

3131 

3198 

,  3311 

3258 

3190 

3197 

2938 

3054 

,  2961 

3170 

.  3227 

2706 

3381 

3026 

3041a 

3306 

3234 

3217 

3214 

2980 

3296 

3215 

3225 

2720 

3175 

3033 

3340 

2934 

2728 

3034 

2951 

3257 

3038 

3175 

3101 

3206 

3066 

3166 

3101 

3360 

3426 

3117 

3235 

3165 

2754, 

3152 

3089 

3104 

3107 

3096 

3320 

2796 

3043 

3052 

3259 

3213 

3360 

2975 

3168 

2861 

2786 

3206 

3050 

271 S 

3347 

2918 

2999 

3235 

3363 

3195 

2784 

3378 

3196 

3017 


Potter  V.  Allin 

V.  Clapp 

V.  Howe 

V.   Potter 
Pound  V.  State 
Powe  V.   State 
Powell   V.   Kane 

V.   Powell 

V.   State 

3059,  3141, 
Power  V.   People 
I'owers  V.  Commonwealth 

V.   Large 
Powys  V.  Mansfield 
I'oyner  v.   State 
Pratt  V.  Adams 

V.  Thomas 

V.   State  2817,  2832,  2847, 
I'ray  v.   Brigham 
I'rehn  v.   State 
I'resser  v.  State 
I'reston  v.  Bowers 

V.   Smith 
Pressler  v.  State 
I'reuit  V.  People 
I'rice  V.  Earl  of  Torrington 

V.   People 

V.   State  2791, 

V.  United  States 
Prichard  v.  People 
Pride  of   Canada,   The 
I'rigg  V.   Pennsylvania 
Primus,  The 
Prince  Frederick,  The 
I'rince  v.  Cutler  3226, 

V.   State  2706,  2723, 

Princess  Alice,  The 
Princessa,  The 
Prindle  v.  State 
Prindiville,    The 
Pritchett  v.  State 
Prize  Cases 
Progresso,  The 
Propeller  Genesee  Chief,   The 

Proper  v.  State. 

Prout  V.  Roberts 

Pugh  V.  Pugh 

Pursell  V.   Horn 

Pusey  V.  Wright 

Putnam  v.  State 

Pyland  v.   State  2913, 

Pyles  V.  State 

Q 

Quackenbush  v.  Leonard 
Quarles  v.  State 
Quartemas  v.   State 
Queen  of  the  Pacific,  The 


3298 

2865 

3221 

3193,  3216 

3036 

2760,  2761 

3218 

2791 

3026,  3041, 

3146,  3151 

3023 

2786,   2943 

3177 

3214 

3168 

3224 

3272 

,  2849,3108 

3236 

2984 

2849 

2939 

3195 

3166 

3017,  3019 

.3314 

2919 

3044,  3166 

2726 

2866 

3352 

2952 

3343 

3293 

3229,  3234 

3029,   3122 

3359 

3320 

3172a 

3265 

3050 

3323,  3502 

3300 

3240, 

3244,   3247 

3098,  3107 

3204 

3209 

2836 

3174,   3211 

3145,  3148 

3049,  3050 

3079 


JJOOO 

3000 
2795 
3350. 


Queen  v.  Brewster 
Quickstep,    The 
Quinn  V.    People 
Quintero,  The 


3354,  3360,  3361 

3066 

3262,  33S4 

3053 

3307 


Rader  v.  Yeargin  3232 

Radford  v.  State  3032 

RafTerty  v.  State  2976,  2980 

Radnorshire,    The  3279 

Raikes.  The  3.356 

Railing  v.  Commonwealth  2770 

Rainforth  v.   People  2980 

Rains  v.   State  3035,  3054,  3129 

Raker  v.  State  3169 

Raleigh  &c.  Bros.  v.  Cook                     2937 

Ramcy  v.   State  3007 


Iviii 


TABLE    OF    CASES. 


IReferences  are  to  Sections.l 


Randall  v.  State 

3171 

Reg. 

V.  Ashton 

2999 

Kanney  v.  People 

2978 

V. 

Aspinall 

2951 

Ransbottom  v.   State 

3093, 

3096, 

3097, 

V. 

Atkinson 

3126 

3106 

V. 

Attwood 

2957 

Ransom  v.   State 

3000, 

3047 

V. 

Austin 

2731 

Rash  V.  State 

302V 

V. 

Baillie 

2748 

Rater  v.   State 

3170, 

3171 

V. 

Banneu 

2958 

Rather  v.  Williams 

3183 

V. 

Barratt 

3092 

Rath  V.   State 

2902, 

2905, 

2906 

V. 

Bates 

2978 

Rawson   v.   Brown 

3398 

V. 

Bauld 

2951 

Ray  V.  State         2777, 

2779, 

2917, 

3041a 

V. 

Bawm 

2864 

Raymond  v.   Flavel 

3175 

V. 

Beard 

2996 

Rayner  v.   Ritson 

3287 

V. 

Berts 

3067 

Razor  v.  Kinsey 

2835 

V. 

Bird 

3091 

Rea  V.   State 

3035 

V. 

Bishop 

3074 

Read  v.  Ooker 

2822 

V. 

Biswell 

2750 

V.   Reynolds 

3200 

V. 

Brad  laugh 

2891 

V.   Winston 

3224 

V. 

Briggs 

3137 

Reading  Ins.  Co.  v.  EgelhofE 

3234 

V. 

Brittain 

2936 

Ready  v.   State 

3010 

V. 

Brown 

2931 

Reagan  v.  State 

3108 

V. 

Buckmaster 

3056 

Reavis  v.  State 

3087, 

3089 

V. 

Bull 

2978 

Rebecca,  The 

3382 

V. 

Bunn 

2951 

Recovery,  The 

3311 

V. 

Burdett 

2708 

Redd  V.  State 

2721 

V. 

Burton 

2981,   3058 

Reddick  v.  State 

3100 

V. 

Bvrne 

2952 

Redding  v.  Godwin 

2936 

V. 

Carlile 

3068 

Redditt  v.  State 

3001 

V. 

Chappie 

2784 

Redford   v.    Birley 

3124 

V. 

Clarke 

2913,   3096 

Redmond  v.  Smith 

3292 

V. 

Clarkson 

3127 

V.   State 

2978, 

3171 

V. 

Clay 

3101 

Reed.   In  re 

3421 

V. 

( 'obden 

2917 

Reed,  Ex  parte      3398 

3419 

3421, 

3426 

V. 

Coggins 

3121 

Reed  v.  Clarke 

3174 

V. 

Cooke 

2994,   2995 

V.   Jones 

3227 

V. 

i^ooper 

2975,   2978 

V.   State 

2956, 

2060 

V. 

Cotesworth 

2836 

Reedy  v.  State 

3172 

V. 

(unninghame 

3122 

Reese  v.   Barker 

3200 

V. 

Curgenwen 

2868 

V.   Reese 

3206 

V. 

Davitt 

3156 

V.   State 

2720 

V. 

Dean 

3101 

V.  Youtsey 

3175 

V. 

Dent 

2978 

Reeves  v.   State 

2963, 

2967. 

2969 

V. 

Dewar 

2906 

Reformes    Club   &c.    v. 

Laborers'    &c. 

V. 

Dossett 

2718 

Soc. 

2951 

V. 

Druitt 

2951 

Reich  V.  State 

3171 

V. 

Drury 

2730 

Reiche  v.   Smythe 

3167 

V. 

Kd  wards 

2770 

Reid   V.    McCallister 

3201 

V. 

Ellis 

2868 

Reilley  v.  State 

3113 

V. 

Esdaile 

2931 

Reimer's  Appeal 

3066 

V. 

Farrell 

3068 

Reitz  V.   State 

3095 

V. 

Flattery 

3096 

Reiall   V.   Greenhood 

3212 

V. 

Forster 

2955 

Relf  V.  Maria,  The 

3300 

V. 

Foulkes 

2966 

Rema  v.  State 

3054 

V. 

Francis 

2976 

Remsen  v.  Remsen 

3221, 

3225 

V. 

Frost 

31.55 

Rennell  v.  Kimball 

3229 

V. 

Gandfleld 

3134 

Reppert  v.   Robinson 

3259 

V. 

Garrett 

2982 

Rescue.  The,  v.  George 

B.  Roberts 

3355 

V. 

Gemnell 

2981 

Respublica  v.  Caldwell 

3067 

V. 

Gibbons 

3080 

V.   Chapman 

33  54 

V. 

Giles 

2979 

V.  De   Longchamps 

2836 

V. 

Godfrey 

2978 

V.   Mai  in 

3160, 

3161 

V. 

Gompartz 

2931 

V.   McCarty       3156 

3157, 

3160, 

3163 

V. 

(ioodchild 

2766 

V.   Roberts 

3157, 

3163 

V. 

Gurney 

2931 

Resd'ution 

83.30 

y. 

Guttridges 

3099 

Resolution,  The 

3323 

3326 

3337 

V. 

Hall 

3058 

Resultatet.  The 

3353 

V. 

TTallett 

3096 

Reward.   The 

3359 

V. 

Handley 

2741 

Reynolds    v.    Burgess 

Sulphite    Fit 

re 

V. 

Harris 

2951,   3068 

Co. 

3195 

V. 

Hayes 

3095 

V.   Everett 

2951 

V. 

Heaton 

2868 

V.   Morris 

3213 

V. 

Hetherington 

2891 

V.   People 

3104 

V. 

Hibhprt 

2951 

V.   Pharr 

3199, 

3211 

V. 

Hicklin 

3068 

V.   State        2719,    2871. 

2872, 

2873. 

V. 

Hind 

2770 

3171 

V. 

Hodgson 

2990 

V.  United  States 

2717 

V. 

Holmes 

3068,  3101 

Reg.  V.  Abraham 

3059 

V. 

Hopkins 

2738 

V.  Adamson 

2980 

V. 

Hornby 

3049 

V.  Alison 

2726 

V. 

Horton 

2872 

TABLE    OF    CASES. 


lis 


[References  are  to  Sections.'] 


Reg. 


V.  Howarth 
•.   Hudson 
.   Hughes 
.   James 
.   Jellyman 
.  Jessop 
.   Johnston 
.  Jones 
.   Justice  of 
•   King 
.   Kipps 
.   Langford 
.   Langmead 
.   Lavey 
.   Lillyman 
.   Lines 
.  Lister 
.  Lock 
.   Lumley 
.  Mailloux 
.   INIanlctelow 
.   Martin 
.   Matthews 
,   Mayers 
.   McCarthy 
,   Meany 

Mills 

Moore 

Murphy 

Nicholas 

Nicholls 

Oddy 

O'Donnell 

Olifier 

Ollis 

Osborne 

Overton 

Owen 

Oxford 

Parker 

Parnell 

Pea roe 

Peck 

Phillips 

Philpotts 

Polly 

Prince 

Randall 

Reeves, 

Rhodes 

Rice 

Richards 

Riendeau 

Roberts 

Robins 

Roden 

Rowlands 

Russett 

Selsby 

Shepherd 

Simmonsto 

Soley 

Stephens 

St.   George 

Thallman 

Timmins 

Tissington 

Toison 

Townsend 

Train 

Turner 

Pulham 

Vrpones 

Warburton 

Watts 

Weaver 

Wei  lard 

Williams 

Willshire 


2984 

Reg.  V.  Wilson 

2763 

2982 

v.  Woodman 

2978 

2779,  3075,  3088 

V.  Woodhurst 

3092 

2820,  2830,  2832 

V.  \^'oolley 

2979 

3172a 

V.  Worley 

307!> 

2979 

V.  Yates 

3079 

2978 

Rex  V.  Abbott 

3033 

2867,  2872,  29S1 

V.  Adams 

2725 

ashire      2891 

V.  Asterley 

2978 

2925 

V.  Aylett 

3079 

2750 

V.  Baker 

3032 

3127,  3172 

V.  Ball 

2718 

3120 

V.  Barnard 

"977 

3079,  3080 

V.  Bear 

2731 

3099 

V.  Beare 

3169 

3092 

V.  Benson 

3074 

3069 

V.  Bird 

2731 

3172a 

V.  Boyce 

2714 

2866,  2867 

V.  Burdett 

3169 

3128 

V.  Carr 

2971,  3078 

2750 

V.  Chadwick 

2980 

2978 

V.  Chappel 

3037 

3172 

V.  Clark 

2731 

3092 

V.  Clarke 

2722,  3098 

3426 

V.  Cohen 

3074,  3090 

3159 

V.  Cooper 

2773 

29S1 

V.  Cox 

3128 

2871,  2872 

V.  Cozins 

3172a 

2977 

V.  Cross 

3064,  3066 

2910,  3100 

V.  Crossley 

3070 

3095,  3109 

V.  Cruttenden 

'  T '  *  5 

3058,  3111,  3118 

V.  Davis 

2731,  3115 

3115 

V.  Dean  of  St.  Asaph 

31(19 

2750,  2752 

V.  De  Beauvoir 

3071 

297(5 

V.  De  Berenger 

2931 

3100 

V.  Deeley 

2714 

3079 

V.  Donellan 

2712 

3079 

V.  Donolly 

3129 

2820,  3162 

V.  Dowlin 

3078 

2955 

V.  Eccles 

2929,  29.11 

2921,  2929 

V.  Ellis 

2720.  2967 

3075 

V.  Emden 

2730,  2731 

2931 

V.  Fallon 

2772 

3127 

V.  Farrington 

2807 

3078,  3079,  3080 

V.  Ferguson 

2951 

2914 

V.  Fuller 

2954 

2752 

V.  Purser 

2731 

3067 

V.  Garland 

2910 

3054 

V.  Gascoigne 

3140 

2714,  3079 

V.  Gill 

2925 

3065 

V.  Gird  wood 

3169 

2887 

V.  Gordon 

3156,  3158 

3099 

V.  Greenacre 

2784 

3072 

V.  Griep 

3080 

2752 

V.  Griepe 

3079 

2720 

V.  Grosvenor 

3067 

2951 

V.  Hailey 

3079 

2974 

V.  Harborne 

2867 

2951 

V.  Harrison 

2715 

2951 

V.  Hartley 

2971 

2863 

V.  Haworth 

2993 

3123 

V.  Hemings 

3128 

3064 

V.  Hensey 

3422 

2820,  2831 

V.  Hindniarsh 

2708 

3068 

V.  Hopes 

3037 

2748.  2750 

V.  Hunt 

3128 

3101 

V.  James 

3074 

2871.  2872 

V.  Jenks 

2714 

2964 

V.  Jones    2929,  3066, 

3078.  3085. 

3064 

3091 

2872 

V.  Journeyman  Taylors 

2920 

2779 

V.  I.,apier 

3129 

3090 

V.  Lara 

2977 

2929,  2931 

V.  Leefp 

3091 

3066 

V.  Lloyd 

2770 

3095 

V.  Long 

2718 

.30  6  R 

V.  Macdaniel 

3054 

3108 

V.  Martin 

3101 

2867 

V.  Mason 

3129 

Ix 


TABLE    OF    CASES. 


[References  are  to  Sections.'] 


2731 


3062 
3079 


3062, 


2931 


3066, 


Rex  V.  Mawbey 
V.   Mayhew 
V.  Medley 
V.   Mailing 
V.   Millard 

V.   Moore 
V.   Morris 

V.   Morrison 

V.   Mott 

V.   Munton 

V.   Neil 

V.  Oneby 

V.  Ossulston 

V.   Peace 

V.  Pearce 

V.   Pease 

V.  Pedley 

V.   Peat 

V.   I'hillips 

V.  Pitman 

V.   Plestow 

V.   Plympton 

V.   Popplewell 

V.   Prendergast 

V.   Rearden 

V.  Reepspear 

V.   Richardson 

V.   Roberts 

V.   Rooney 

V.   Ross 

V.   Rowley 

V.   Rowton 

T.   Royce 

V.   Russell 

V.   Ryan 

V.   Scott 

V.   Sedley 

V.  Seward 

V.   Shepherd 

V.   Smith 

V.   Snowley 

v.   Sparling 

V.   St.  Asaph 

V.   Stone 

V.   Story 

V.   Sudbury 

V.   Tavlor 

V.  Tindall 

V.  Turner 

V.  Twyning 

V.   Vandercomb 

V.   Verelst 

V.   Waddington 

V.  Walker 

V.   Ward 

V.  Walsh 

V.  Watts 

V.   Wedge 

V.   Wilkes 

V.   Williams 

V.   Wink 

V.  Winkworth 

V.   Woodfall 

V.  Woolston 
Rhea  v.  Allison 

V.   State 
Rhoades  v.  Selin 
Rhode  Island  v.  Massachusetts 
Rhode  Is'and.  The  3259,  3264, 

Rice  V.  Commonwealth 

V.   Polly  and   Kitty,   The 

V.  Rigley 

V.   State 
Rich  V.   I>ambert 

V.   United   States 
Richard   Winslow,  The 
Richard  Matt.  The 
Richards  v.  Commonwealth 

V.   State 


2718,   2914, 


2977, 


2780, 


3064, 


3095, 


2716,    2732. 

2890, 


3212, 
3101, 
3244, 
3071, 


2951 

3088 
3067 
3090 
2960 
3129 
3074 
3023 
2931 
3078 
3064 
2732 
2750 
2714 
3172 
3064 
3090 
3140 
2765 
3049 
2984 
2897 
2894 
3079 
3099 
3172a 
3115 
3075 
3134 
3172 
3078 
2721 
3126 
3067 
2722 
3125 
3068 
2929 
3172 
3243 
2972 
2894 
2732 
3422 
2978 
3125 
2731 
3067 
2931 
2867 
2731 
3075 
2891 
2714 
3067 
2952 
3067 
3109 
3068 
29S2 
3134 
3134 
3169 
2891 
3190 
L720 
3184 
3208 
;;386 
3152 
3299 
3216 
3115 
3260 
3079 
8240 
3296 
3050 
3104 


Richardson  v.  Buhl 

V.  Duble 

V.   Richardson  2792 

V.   State  2791,   2794,   2796, 

V.  Wright 
Richels  v.    State  2830 

Richie  v.  Levy  3232,  3235, 

V.  State 
Rick  V.  Neitzy 
Ricks  V.  State 

Richmond   v.   New  Bedford  &c.   Co. 
„.  ^  3250, 

Richter     v.     Journeymen     Tailors' 

Union 
Ricord,  Ex  parte 
Riddle  v.  Keller 

Ridenour  v.    State  2717, 

Ridge  V.  State 
Ridgeway  v.   West 
Ridley  v.  Ridley 
Riggins  V.  State 
Riggs  V.    Commonwealth 

V.   State  3018, 

Riley  v.   Commonwealth  3038, 

V.   State  2731,    2964,    2965, 

2995 
Rindskopf  v.  Platto 
Ringer  v.    State 
Ringgold  V.    Bryan 
Ringwalt  v.   Ahl 
Riots  of  1844.  In  re 
Rising   Sun,    The 


3335, 
3349,   3354, 


Risk  V.  State 
Rita,   The 
Ritter  v.  State 
Rix  V.  State 
Roach  V.    Glos 

V.   People 

V.   Summers 
Roache  v.   Morgell 
Roanoke.   The 
Robbins  v.   Budd 

V.   Butler 

V.   PeoDle  3004, 

V.   State 
Roberson  v.   State  2917,  2919, 

Robert    Holland.   The 
Robert.  The 
Roberts  v.   Barker 

V.   Briscoe 

V.  Commonwealth 

V.   Kendall 

V.   Miles 

V.   People 

V.   State  2725, 

Robertson   v.    Baker 

V.   Parks 

V.   State  2«32, 

Robson  V.   State  2714,   2964,   2969, 
Robinson  v.   Cathcart 

V.   Cullom 

V.   Hardin 

V.   .lefferson 

V.   Milner 

V.   Navigation    Co 

V.   Philadelphia  &c.  R.  Co.  3193. 

V.   State  2719.    2919.    2962. 

2994,   3007,  3009,  3047,  3055. 
3066,  3080, 
Rocco  V.  State 
Rockaway 

Rockecharlie   v.    Rockecharlie 
Rockwell    V.    Graham 
Roden  v.   State 
Rodgers  v.  People 
Rodiquez  v.    State 
Rogers  v.   Amado,   The 

V.   Brooks 

V.   Eberts 


2951 
3183 
2794 
2797 
3225 
2834 
3236 
3101 
3198 
3103 

3263 

2951 
2965 
3213 
3166 
2912 
3005 
3232 
2774 
3043 
3046 
3040 
2991, 
3170 
3195 
3041a 
3198 
3176 
3126 
3340 
3095 
3360 
2969 
2785 
3200 
2851 
3199 
3208 
3363 
2731 
3193 
3009 
2763 
3099 
3247 
3346 

2941 
3026 
2941 
3205 
3140 
3041 
3227 
3207 
3052 
2972 
3199 
3213 
3198 
3201 
3233 
33S1 
3214 
2964, 
3059. 
3113 
2731 
3367 
3212 
3194 
3022 
2913 
3028 
3343 
3213 
2951 


TABLE   OF    CASES. 


Ixi 


iReferences  are  to  Sections. 1 


Bogers  v.  State 

2814 

3082 

V.   St.  Charles.  The 

32.51 

V.  Traders'    Ins.    Co. 

3216 

Rohr  V.  State 

2996 

Rollins  V.  State 

2932 

2993 

Roman,  The 

3372 

Roman   I'rince,  The 

3360 

Romeo,    The 

3332, 

3337 

Roode  V.  State 

2996 

Roosa  V.  Davis 

3231 

Resales   v.    State 

2984 

Rosalie  and  Betty,  The 

3340 

Rosenbaum    v.    State 

2703 

Rose   V.   Commonwealth 

2911 

V.   Ilimely 

3268 

V.   Innis 

2971 

Boss  V.  Bruce 

2993 

V.   State            2717,   2724, 

3166, 

3171 

Ross,   In  re 

3246 

Roten  V.   State                  3038 

3041, 

3043 

Rothschild   v.    State 

297S 

Roundtree  v.  Gordon 

3204 

Roush  V.   State 

2998 

Routt  V.   State 

3129 

Rovena.    The 

331,5 

Rover,  The 

3329 

Rowe  V.  Brig,  The 

3357 

V.   (Jranite  Bridge  Co. 

3067 

Rowland   v.    Sturgis 

3196 

Rowley,  Appeal  of 

3198, 

3201 

Royall  V.   McKenzie 

3193 

Rubber  Co.   v.  (ioodyear 

3213 

Rudder  v.  Koopman 

3069 

Rufer  V.  State 

20.39, 

2943 

Ruloflf  V.  People              2708, 

3028, 

3041a 

Rundle  v.  Beaumont 

8812 

Runkle  v.  United  States 

3402, 

3425, 

3442. 

3457 

Runyan  v.  State 

2847, 

3041a 

Rush  V.  State                     2910, 

2915, 

3041 

Rusling  V.  Bray 

3224 

Russell  V.  Dickeschied 

3195 

V.  Russell 

3204 

V.   State                         2717, 

2871, 

2873 

Rust  V.  ^Mansfield 

3206 

V.   Mobile  &c.  Co. 

3235 

Rutherford  v.  State 

2838, 

2842 

Rutledge  v.  State 

3036 

Ryan   v.   People 

2724 

V.   Rockford  Ins.  Co. 

2997 

V.   State                         2714, 

2724, 

2918 

Ryder  v.  State 

2728 

Byerson  v.  Adams 

3213 

s 


St.  Colombe  v.  Ignited  States 

St.  Jago  dp  Cuba,  The 

St.  .Tuan  Baptista,  The  3320, 

St.  John  V.  Paine  3380, 

St.  Lawrence.  The  3242, 

St.  Louis  V.  Fitz 

V.     Sullivan  3000, 

St.  Paul,  The 

St.  Paul  &c.  R.  Co.  V.  Gardner 
S.  A.  Rudolph,  The 
Sabine.  The  3348, 

Saffold  V.  Home 
Saflford  v.  Ensign  Mfg.  Co. 

V.   Old  Colony  R.  Co. 

V.   People 
Sage  V.  Barnes 

V.   State 
Sahlinger  v.  People 
Salisbury  v.  Salisbury 
Sallee  v.  Duncan 
Sallenger  v.  Perry 
Sally,  The  3330, 


3141,  3145, 
2781,  3037, 


3191 
3244 
3332 
3395 
3245 
2946 
3004 
3360 
3218 
3355 
3352 
3205 
3195 
3226 
3153 
3066 
3042 
3111 
3216 
3199 
3216 
3335 


Ryan 


3270, 


3356, 
3259, 


Sally  Magee,  The  3323,  3327,  3332 
Salmon  v.  Smith 

v.   State 
Sam  Rotan.  The 

Sam  v.  State  2806, 

Samples  v.  I'eople 
Samuel,  The  3244,   3267, 

Samuel  11.  Crawford.  The 
Samuel   Marshall,  The 
Samuel  Ober,  The 
San  Antonio  &c.  R.  Co 
Sanchez  v.  State 
Sanderlin  v.  State 
Sanders  v.  Dowell 

v.   People 

V.   State 
Sanderson  v.  Commonwealth 
Sandringham.  The  3348,   3354 

Sands  v.  Commonwealth 
San  Jose  Indiano,  The    3323,  3335 
San  Marcos.  The 
Santa  Ana.  The 
Santa  Clara  &c.  Co.  v.  Hayes 
Santa  Claus,  The 
Santissima  Trindad,   The 
Sapp  V.  State 
Sapphire,  The 
Sappington  v.  State 
SaragoRsa.  The 
Sarah  Ann,  The 
Sarah  K.  Kennedy.  The 
Sarah  Jane.  The    3292,   3293,   3307, 
Saratoga.  The 
Sartorious  v.  State 
Sarah,  The 

Sarah  and  Caroline,  The 
Sasser  v.  State  2953, 

Sattler  V.  I'eople 
Sauls  v.  State 
Saunders'  Case 
Saunders  v.  Hanover,  The        3367, 

V.   Jones 
Savage  v.  Carroll 
Savile  v.  Roberts 
Savings  &c.  Soc.  v.  Davidson 
Sawyer  v.  Campbell 

v.   I'eople 
Sawyers  v.  Sawyers 

V.   State 
Saylor  v.  Hicks 
Sayres  v.  Commonwealth 
S.  C.  Tryon,  The 
Schaefer  v.  State 
Schafer  v.  Mayor 
Schleisinger  v.'  State 
Schlemmer  v.   State 
Schley's  Case 
Schlict  V.  State 
Schmidt  v.  United  States 
Schmisseur  v.  Beatrie 
Schneider  v.  Patton 
Schnicker  v.  People 
Schott  v.  State 
Schrimsher  v.  State 
Schulten  v.  Bavarian  Brew.  Co. 
Schurzer  v.  State 
Schwabacher  v.  I'eople  2719,  2910. 

Schwartz  v.  Commonwealth 
Schwarz  v.  Sears 

V.    Wendell 
Scioto.  The  3368,   3372,  3379, 

Scobel  V.  (Jiles 

Scoggins  V.  State  2859,   2864. 

Scotia,  The  3244, 

Scotland,  The  3244, 

Scott  V.  Clara  E.  Bergen,  The 

V.  Clarkson 


3083, 


2741,   2742, 


,  3335 
3206 
3011 
3392 
2815 
2944 
3352 
3366 
3263 
3293 
3235 
3165 
3171 
3231 
3080 
2786 
3049 
3360 
2937 
3339 
3293 
3.351 
2951 
3271 
3319 
3054 
3251 
3091 
3359 
3269 
3259 
3316 
3306 
3111 
3332 
3329 
2955 
3172 
3168 
2783 
3371. 
3382 
3214 
3206 
2920 
3199 
3174 
2855 
3207 
3044 
3177 
3036 
3378 
2786 
3066 
2984 
3042 
3457 
3170 
3085 
2865 
323  3 
2751 
3172 
3166 
2951 
3171 
2911. 
2919 
3088 
3224 
3201 
3391 
3273 
2866 
3.378 
3258 
3351 
3200 


Ixii 


TABLE    OF    CASES. 


IReferences  are  to  Sections.} 


2761,  2762, 


2942, 
3166, 
2854, 
2754, 


3271, 
3018,  3101, 

2792,  2797, 


Scott  V.  Donovan 

V.  Livesey 

V.   Miller 

V.   People 

V.   Rose 

V.  Shepherd 

V.   Slate  2721,  2729, 

2997.   3009.  3100,  3102, 
Scribner  v.  Beach 
Scruggs  V.  State    2750,  2753, 
Seaborn  v.  Commonwealth 
Seacord  v.  People 
Sea  Gull,  The 
Seals  V.  State 
Searles  v.  State 
Searls  v.  People 
Sears  v.  Barnum 
Secor  V.  State 
Sedgwick,  The 
Seeger  v.  Mueller 
Seibert  v.  State 
Seisler  v.  Smith 
Seitz  V.  Mitchell 
Selbv  V.  Geines 

Selden  v.  State  ^„„^ 

Self  V.  State  2777, 

Sellers  v.  State  ^^,    „„^„ 

Selma.  The  3344,  3345,  3346, 

Semon  v.  State 
Semple  v.  Murphy 
Seneca,  The 

Senser  v.  Bower  „„_„ 

Serapis,  The  3251,  3277,  3279, 

Seringapatam.  The 
Serviss  v.  Ferguson 
Seymore  v.  State  3049, 

Shackleford  v.  Elliott 
Shady  Side.  The 
Shaffer  v.  State 
Shafner  v.  State 
Sharkey  v.  State 
Sharmer  v.  Mcintosh 
Sharp  V.  Morrow  ^„„ 

V.   State  2706,  2943,  2973, 

3049,  3051, 
V.  Wilhite 
Shaw  V.  State  „„^^ 

Shawnee,  The  3296, 

Shea's  Appeal 
Shears  v.  State 
Sheffield  &c.  Co.  v.  Gordon       3191, 

Shell  V.  State 
Shellhouse  v.  State 
Shenkenberger  v.  State 
Sheppard  v.  Taylor 
Shepherd  v.  People 

V.   State 
Sherbon  v.  Colebach 
Sherlock  v.  Ailing 
Sherman  v.  People 
Sherrill  v.  State 
Sherry  v.  Perkins 
Sherwood  v.  Hall 

V.   Mcintosh  3300 

Shields  v.  State 
Shifflet  V.  Commonwealth 
Shinn  v.  State 
Shipman  v.  Fletcher 
Shirley  v.  Shields 

V.   State 
Shirwin  v.  People 
Shivers  v.  Newton 

V.   State 
Shoecraft  v.  State 
Shoemaker's  Estate 
Shoemaker  v.  Xesbit 
Short  Staple.  The 
Shorter  v.  State 


3101,  3103 


3328 


3095 
3235 
3278 
2768 
3307 
2836 
2944, 
3170 
2856 
2756 
3040 
3064 
3378 
3217 
2943 
3068 
3213 
2963 
3266 
3066 
3170 
3175 
3199 
3216 
3163 
2780 
3170 
3347 
3113 
3195 
3242 
2867 
3-281 
3372 
3366 
3129 
3215 
3260 
2977 
2861 
2999 
3175 
3221 
2980. 
3096 
3074 
3036 
3299 
3183 
2720 
3226. 
3232 
3090 
3066 
3032 
3252 
2806 
2724 
2999 
3244 
2980 
2709 
2951 
3250 
3301 
3043 
2816 
3129 
3236 
3207 
3172 
3108 
3165 
2968 
3134 
3176 
3423 
3329 
3166 


Shotwell  V.  State 

Shouse  V.  Commonwealth 

Shover  v.  State 

Shriedley  v.  State  2718,  2720, 

Shultz  V.  Territory  „^^„ 

Siberry  v.  State     2707,  2715,  3028, 

Sibert  v.  Kelly 

Sickles  V.  Gloucester  Co. 

Sidney  v.  Sidney 

Siebert  v.  People 

Sigard  v.  Roberts 

Sigler  V.  State 

Silver  Spray,  The 

Silver  v.  State  3074, 

Silvus  V.  State 

Simco  V.  State 

Simmons  Creek  Coal  Co.  v.  Doran 

Simmons  v.  Jacobs 

V.   People 

V.   State  2733,  2989, 

Simms  v.  Guthrie  „„  ^ 

V.   State  2777,  2780,  2784, 

Simons  v.  People  ^9^5' 

V.   State  3027, 

Simplot  V.  Simplot 
Simpson  v.  Morris 

V.   State  2814,  2827,  2830. 


3019,  3074. 
2910,  2912,  3033, 


V.  Yeend 
Sims  V.  State 
Simson  v.  Hart 
Singleton  v.  Scott 

V.   State 
Sinks  V.  Reese 
Siren.  The 
Sirius.  The 
Sir  William  Peel,  The 
Sisk  V.  State 
Skiff  V.  People 
Skinner  v.  Campbell 

V.   State 
Slater  v.  Banwell 
Slattery  v.  People 
Slaughter  v.  Commonwealth 

V.   Slaughter 
Slavers.  The 
Slee  V.  Bloom 
Slessinger  v.  Buckingham 
Sloan  V.  State        3071,  3072,  3087, 


3355,  3359, 
3321, 


2702,   2723, 


2742.  2743 
2745,  2748, 


Slocum  V.  People 

Slusser  v.  State 
Small  V.  Harrington 
Smallwood  v.  Lewin 

V.  Mitchell 
Smart  v.  AVolff 
Smith.  The 
Smith.  Matter  of 
Smith  V.  Althus 

V.  Atwood 

V.  Axtell 

V.  Bouchier 

V.  Brown 

V.  Burnham 

V.  Causey 

V.  Clarke 

V.  Commonwealth  2708.  2786. 
3041.  3065,  3104,  3105,  3145 

V.  Davidson 

Ex  parte 

V.  Freeman  2940 

V.  Gaffard 

V.  J.  C.  King.  The 

V.  Kincaid 

V.  McDowell 

V.  Newland 

V.  Xippert 

V.  People    2725.  2918,  2921, 
2929.  2931.  2951,  2974,  2980 


2910 
3128 
2717 
3118 
2727 
3044 
3226 
3181 
3214 
2707 
3297 
3067 
3363 
3079 
3022 
2963 
3216 
3226 
2984 
3036 
3213 
3009 
3044 
3168 
3213 
2836 
3015, 
3095 
2897 
3040 
3211 
3213 
3044 
3419 
3347 
3363 
3332 
3111 
2981 
3217 
3001 
3195 
2760 
3058 
3234 
3329 
3229 
3198 
3126 
2744, 
2754 
2835 
3174 
3199 
3312 
3320 
3244 
3472 
3223 
3201 
3213 
3074 
3231 
3214 
2825 
3214 
2841. 
3169 
3193 
2716 
2942 
2764 
3296 
3199 
3066 
3178 
2920 
2924, 
,  3056 


TABLE   OF    CASES. 


Ixiii 


IReferences  are  to  Sections.} 


Smith  V.  Phelps  3199 

V.   I'ollock  3218 

V.  Riiwe  ;^-'1« 

V.  Shaw  3399,  3415,  342:5 

V.  SUicum  2.S4.S 

V.  Swaia  3221 

V.  State     2703,  2708,  2709,  2714, 

2717,  2726,  273.5,  2737,  2759,  2780, 

2785,  27S(i,  27'.).-),  2806,  2818,  2918, 

2931,  2!):!7,  2'.»::i»,  2941,  2964,  2975, 

2979,  2U.S1,  301 1.  3025,  .3026,  3027, 

3041a.  3044,  3066.  3082,  3091,  3095, 

3102.  3105.  3108.  3113.  3121,  3129. 

3142.  3145,  3153,  3166,  3168,  3172 

V.  St.  Louis  &c.  Ins.  Co.       3211 

V.  Treat  3300 

V.  Tnited  States    3038,  3041,  3421 


V.  Whitney 

V.   Williams 
Smith's  Case 
Smoot  V.  Rea 

V.   State 

V.   Strauss 
Smurr  v.  State 
Snapp  V.  Commonwealth 
Snap  V.  People 
Snark.  The 
Snell  V.  Deland 

V.   Fewell 
Snelling  v.  State 
Snoddy  v.  State 
Snodgrass  v.  Commonwealth 

V.   State 
Snow  V.  Wheeler 

V.  Wope 
Snyder  v.  Commonwealth 

V.   People 
Snyder,  In  re 
Soaps  V.  Eichberg 
Soeiedade  Feliz,  The 
Solander  v.  People 
Solcum  V.  People 
Son  V.  Territory 
Soule  V.  Rodocanachi 
South  V.  State 
Southard  v.  Curley 
South  Carolina,  The 
Southerland  v.  Jackson 


3419,  3426 
3172 
2960 
3201 
2999 
3213 
2714 

3057,  3137 
3172 
3067 
3232 
3199 
3041a 

2786,  3055 
3035 
3142 
2951 
3293 

2720,  3129 
2806 

2981,  2984 
3193 
3314 
2764 
2753 
3026 
3259 
2745,  2750,  2756 
3216 
3310 
3066 


Southern  &c.  R.  Co.  v.  Rutherford  2951 

Southwark  &c.  Co.  v.  Quick      3289,  3290 

Sowles  V.  Sartwell  3234 

Spalding  v.  People            2964,   2967,  2971 

Sparf  V.  United  States  2732 

Sparhawk  v.  Union  &c.  R.  Co.  2889 

Sparks  v.  Commonwealth         2722,  2921 


Spaulding  v.  State 

Spear  v.  Hiles 

Speculation,  The 

Speers  v.  Commonwealth 

Speiden  v.  State 

Spencer  v.  Commonwealth 


3063,  3065 
3046 
2774 
3333 
2915 
3054 

2953.  2997. 
3  OS  6 


V.  State  3120 

Spencer's  Appeal  320.) 

Spies  V.  People     2718,  2732,   2774.   2779, 

2782,   2921,   2937,   2938,   2943,   2944. 

3122 
Spittorfif  V.  State  3052 

Spivey  v.  State  3029,  3038.  3050 

Sprague  v.  State  3065.  3290.  3300 

Spratt  V.  State  3007 

Springbok.  The  3335.   3341 

Springer  v.  State  3120 

Springhead  &c.  Co    v.  Riley  2951 

Sprouse  V.  Commonwealth  2901,   2995 

Squire  v.  State     2863,  2866,  2867.   2872. 

3(n0 
Stackpole  v.  Hancock  3206,  3211 


Stafford  v.  State  3026, 

3058, 

3125, 

3122 

Staight  V.  State 

3072, 

3075, 

3091 

Stainback  v.  Rae 

3369 

Stalcup  V.  State 

2705 

Stalker  v.  State 

2955 

Stallings  V.  State 

2965, 

2972 

Stangiein  v.  State 

2863 

Stanley  v.  State 

2909, 

2972 

V.   United  States 

3079 

Starchman  v.  State 

2910 

Starck  v.  State 

3051, 

3056 

Starke  v.  State 

2792, 

3U36 

Starkweather  v.  Williams 

.•;i'.i5 

State  V  Abbatto 

3026 

V.   Abbey 

2863 

V.   Abbott 

3041 

V.  Abegglan 

3153 

V.  Ackerman 

2731 

V.   Ackles 

3036 

V.   Acra 

3128 

V.   Adams         2726. 

2917, 

2968, 

2969, 

3026, 

3054, 

3130, 

3148 

V.  Adin 

3020 

V.   Agnew 

3042 

V.   Ahern 

3170 

V.   Aiken 

2771 

V.   Aikens 

3071, 

3072 

V.   Alcorn          2759, 

2760, 

2770, 

2766 

V.   Aleck 

2819 

V.  Alexander    2728, 

3018, 

3021. 

3127 

V.   Alford 

2843, 

2844. 

2846 

V.   Allen 

2959. 

2994 

V.   Alphin 

29S() 

V.   Ammons 

3091 

V.  Anderson    2915. 

2934. 

2937, 

2974, 

2975, 

3020. 

3036. 

3102 

V.  Andrews       2731, 

3000, 

3004, 

3170 

V.  Angel 

3024 

V.   Antonio 

2954, 

2955 

V.   Appling 

3068 

V.   Araah 

3152 

V.   Ariel 

3018 

V.  Armington 

2863, 

2866. 

2873 

V.   Armstrong 

2732, 

2863, 

2874 

V.   Arnold 

2943 

V.   Asbell 

2709, 

3027 

V.   Ashley 

2862, 

2866 

V.  Aslesen 

3165 

V.   Atherton 

3096 

V.  Atterberry 

3146 

V.  Austin       2792,  3041,  3041a, 

3109, 

3171 

V.   Avery 

2709, 

3167 

V.   Babcock 

2806, 

3066 

V.   Baber 

3022 

V.   Baden 

2787 

V.   Baer 

3171 

V.   Bailey 

2792 

3123 

3125 

V.  Bain 

2714 

V.   Baker           2724, 

2817. 

2819. 

'>S-'9 

3028.  3036,  3098 

3099 

3100 

3170 

V.   Balch 

3136 

3137 

3138 

V.   Baldwin      2723, 

2770, 

2895, 

2972. 
3025 

V.   Ballard 

3052 

V.   Ballon 

3022 

V.   Bancroft 

2914 

V.   Banks 

2705 

V.   Barefoot 

2S66 

V.   Barfield 

3044 

V.   Barham 

2724 

2S94 

V.   Barker 

2771 

V.   Barnes 

3064 

3169 

V.   Barrett 

3043 

V.   Barrow 

2866 

2869 

2873 

V.    Bartlett      2715, 

2728, 

2924, 

3041a 

V.   Baskett 

3108 

V.   Bates 
V.  Battle 

2720 
2810 

Ixiv 


TABLE    OF    CASES. 


[References  are  to  Sections.'] 


State 


V.  Bauerkemoer 

3152 

State 

V.  Bresland 

3065 

Baumon 

2995 

V. 

Brewington 

2895 

Beabout 

3093 

V. 

Bridgman 

2791, 

2792, 

2796, 

2955 

Beach 

2703 

V. 

Briggs 

2792 

Bean 

3065 

V. 

Brigman 

3172 

Beasley 

2727, 

2997 

V. 

Brin 

2786 

Beaty 

2722 

V. 

Brinkhaus 

2757, 

3146, 

3148 

Beaucleigh 

2976 

V. 

Britt 

2986, 

2997 

Bebb 

3099 

V. 

Britton 

2863 

Beck 

3042 

V. 

Broadbent 

2839 

Bedard 

3102 

V. 

Brock 

3153 

Bee 

2912 

V. 

Brodcrick 

3129 

Beebe 

2774 

V. 

Brodnax 

3166 

Beeler 

2953 

V. 

Brocker 

3167 

Behan 

2802, 

3002, 

3004 

V. 

Broughton 

2723 

Beird 

3040 

V. 

Brooks 

2724, 

2794, 

2968, 

2969, 

Bell 

2728, 

2757, 

2911, 

2919, 

3015, 

3016, 

3029, 

3041, 

3127 

3035, 

3062, 

3144, 

3150, 

3152 

V. 

Brow 

2745 

Benedict 

2720 

V. 

Brown 

2731, 

2895, 

2953, 

2954, 

Benham 

3041a 

2 

959,   2966, 

3014, 

3016, 

3017, 

3019, 

Bennett 

3128 

p 

020,  3023, 

3024, 

3041, 

3042, 

3043, 

Benson 

2714 

3052,   3079, 

3080, 

3090, 

3099, 

3101, 

Berdetta 

2703, 

3066 

3122,   3129. 

3142, 

3148, 

3152, 

3153, 

Berger 

2720 

3170 

Bertrand 

3017, 

3022 

V. 

Bruce 

2880, 

2885 

Bess 

2757, 

3149 

V. 

Brunell 

3063, 

3065 

Bethel 

3059, 

3119 

V. 

Bruner 

3167 

Bias 

3166 

V. 

Bryan 

2970, 

3145, 

3146 

Bierce 

3148, 

3153 

V. 

Bryant 

3055 

Bige 

3153 

V. 

Buchanan 

2924, 

2928, 

2930, 

2931, 

Binkbaua 

3144 

2944 

Birdwell 

3035 

V. 

Buckles 

2714 

Bishel 

3000 

V. 

Buckley 

3088 

Bishop 

2723, 

3053 

V. 

Buckman 

3165 

Bitman 

2843 

V. 

Bugg 

2910 

Black 

28r)6 

V. 

Bulla 

3111 

Blackley 

2965, 

2970 

V. 

Bullinger 

3168 

Blackwell 

2827 

V. 

Bunker 

3080 

Blair 

3122, 

3128 

V. 

Burdon 

3115 

Blaisdell 

3091 

V. 

Burgdorf 

3096 

Blize 

3089 

V. 

Burgess 

3053 

Bloodsworth 

2981 

V. 

Burk 

2720 

Blue 

2918 

V. 

Burnham 

2921, 

2924, 

2929, 

2930, 

Boardman 

2722, 

3063, 

3065 

2931 

2932, 

2933, 

2951 

Bobbst 

2745, 

2750, 

2756 

V. 

Burns 

2714, 

2806 

Bodie 

3023 

V. 

Burpee 

27.32 

Bogue 

2777, 

2779 

V. 

Burton 

2719 

2822 

2844, 

3002 

Boies 

3122 

V. 

Bush 

3169 

Bokien 

2976 

V. 

Busse 

3034 

Bollis 

3166 

V. 

Bussey 

2741, 

2742, 

2744, 

2745. 

Bonds 

3023, 

3035 

2750 

Boneil 

3011 

V. 

Butler 

2898 

2964, 

3172 

Bonney 

3170 

V. 

Buxton 

3149 

Bonsor 

3105 

V. 

Byrd 

3023 

Book 

3000 

V. 

Byrne 

2806 

2807, 

2816, 

3099 

Booker 

3020 

V. 

Caddie 

2915 

Borchert 

3105 

V. 

Cain 

3171 

Bordeaux 

3091 

V. 

Calder 

3127 

Bordelon 

3032 

V. 

Calhoun 

3129 

Bowker 

2705 

V. 

Calkins 

2995 

Bowles 

3020, 

3032 

V. 

Call 

2975, 

2984 

Bowman 

3143 

V. 

Callohon 

3133 

Bowser 

3036, 

3095 

V. 

Campbell 

2715, 

3084, 

3099. 

3101, 

Boyce 

3024 

3133, 

3165 

Boyer 

3000, 

3004, 

3009 

V. 

Cardelli 

2708 

Boyland 

2720 

V. 

Cardoza 

2931 

Brabnam 

3043 

V. 

Carnagy 

3092, 

3104. 

3102 

Bradley 

2723. 

2980, 

3024. 

3026. 

V. 

Carpenter 

2838 

2910 

3070, 

3107 

3027 

3035, 

3036. 

3044 

V. 

Carr 

2785 

2952 

29,-.9, 

3024 

Brady 

2725, 

2910, 

2918, 

3103. 

V. 

Carrick 

2969 

2972 

3169 

V. 

Carroll 

2910, 

2945, 

3100 

Brame 

2972 

V. 

Carron 

3143 

314.5. 

3147 

Brandenburg 

3145 

V. 

Carter 

2986, 

3041a 

Brant 

3172 

V. 

Carver 

3019 

Brassfleld 

3145, 

3146, 

3147. 

3148. 

V. 

Cassady 

2774 

2775, 

2779 

3151, 

3152, 

3153 

V. 

Cass'dy 

3101 

Brazil 

3126, 

3127 

V. 

Castor 

2725, 

3059, 

3136 

Brecht 

2800 

2801 

2S03 

V. 

Cather 

30.39 

Breckenridge 

2960 

2992 

V. 

Caveness 

3115 

TABLE    OF    CASES. 


Ixv 


[References  are  to  Sections.'\ 


State  V.  Caywood             3073,  3090,  3091 

V.  Chaffln  3041 

V.   Chamberlin              2995,  3071,  3072 

V.   Chambers                              3051,  31G8 

V.  Chandler     2795,  2889,  2891,  2894, 

2896,  3038 

V.  Chandonette  3172a 

V.  Charleston  &c.  Co.  3007 

V.   Chase  3026 

V.  Chee  Gong              2727,  2733,  3024 

V.  Cherr.v  2820,  2831.  2834 
V.  Chevallier                            3027,  3040 

V.   Child  2727 

V.  Chisenhall    2740,  2741,  2742,  2750 

V.   Chitteni  2778 

V.   Chrisp  2805 

V.   Christlanbury                      2925,  2935 

V.  Christmas  2912 

V.   Church  2970 

V.  Churchill  3175 

V.   Clark            2838,   2862,   2863,  2935, 

2937,   2973,  3027,  3046,  3041a,  3058, 

3099 

V.  Claude  3041 

V.   Clawson  2792 

V.  Clayborne  2838 

V.  Clements      2728,  2760,  2771,  2786 

V.   Clemons                    3145,  3151,  3153 

V.   Cleveland  3024 

V.  Clifford  3056 

V.  Clough  3073 

V.  Clyne  3169 

V.  Cochran  3148 

V.  Codv                                       2822,  2835 

V.  Coffee            2792.  2795,  2798,  2790 

V.  Coffman  3151 

V.  Cohen                                   2713,  2810 

V.   Colby                                      2792,  2800 

V.   Cole              2931,  2954,  2960,  2993. 

.3035,  3123 

V.  Coleman                               3016,  310S 

V.   Collens  2972 

V.   Collins                                   2968,  3038 

V.  Colston  3171 

V.  Conable  3169 

V.   Cone                                        2861,  3104 

V.   Connell  3170 

V.  Conway        2725,  2727.  2918,  3056 

V.   Cook                           3027.  3101,  3105 

V.  Coombs  3056 

V.  Cooper         2726,  2759,  2766,  2863, 

2943,  2965,  3027,  3036 
3009 


V.  Cooster 
V.   Copeland 
V.  Coppenburg 
V.  Corrivau 
V.  Council 
V.  Covert 
V.  Covington 
V.   Cowan 
V.  Cowdin 
V.  Cowell 
V.  Cox 
V.   Crab 
V.  Crabtree 
V.  Craige 
V.  Crane 
V.  Crank 
V.  Craton 


3050 
3120 
3023 
3167 
2962 
2995 
2969 
2981 
2910 
2937 
2937 
3n.S5 
3051.  3052 
2707.  2981 
3059 
3024,   3046 


V.   Crawford    2720.  2811,   2816.   3040. 
3148.   3152 
V.   Creson  2721,   2761,   2763,   2765 

V.   Croflford  2720 

V.  Crogan  3009 

V.  Cronin  3043 

V.  Cross  2725,  2855.  .3018.  3059. 

3104 
V.   Crow  2706 

V.  Crowell  2733 

Vol.  4  Elliott  Ev.— v 


State  V.  Crowner 

V.  Crowley       2792,  2921, 

V.   Cruikshank 

V.   Cunningham  3043, 

V.  Curran         2754,  2755, 


V.   Curtis 


2972,  3016, 


2924. 
2982 

3066, 
3144. 

3151 
3017, 


V. 


Cushing 

Cutshall 

Czarnikow 

Da  lev 

Dalton 

liana 

lianforth 

I)"Angelo 

Daniel 

Danbert 

Daugherty 

Davenport 

David 

Davidson 

Davis  2704, 

•822.   2823,   2827, 

i897,   2983,   2993, 

3055, 

Day 

Dayton 

Deal 

Dp  Berry 

DeBoy 

Decklotts 

Dee 

Deitrick 

Delaney 

De  Lay 

Dengel 

Dennin 

Dennis 

Deputy 

DeRance 

Desforges 

Desroches 

Dettmer 

De  Witt 

De  Wolf 

De  Wolfe 

Dexter 

Deyoe 

Dickinson 

Dickson 

Dierberger 

Dietz 

Di  Guglielmo 

Dill 

Dillard 

Dillon 

Dimick 

Dineen 

Ditton 

Dixon 

Dockstader 

Dodson 

Doepke 

Doherty 

Doig 

Dolan 

Dole 

Dollison 

Dona hoe 

Donahoo 

Donaldson 


705,  3028,  3038 
3055, 


3099, 


2783, 
2836. 
2998. 
3120. 


3026, 

2784. 
2854, 
3016. 
3129. 
3091, 

3129, 
2723, 


2753, 


2924,  2931,  3102, 


27.59, 
2708,  3044, 
2969, 


2855 


V.   Donnelly 
V.   Donovan 
v.   Dooley 
V.   Dorr  ' 
V.   Douglass 


2920. 


2729. 


2729 
3007 

2855, 

2921. 
2932 
2719 
3104 


;7S4, 


2797 
2925. 
3026 
3070 
3086 
3149. 
3152 
3092. 
3170 
3041 
2860 
3004 
3059 
3092 
3168 
3095 
3036 
2978 
2934 
3100 
2709 
3027 
2708 
2818, 
2861. 
3035. 
3427 
3170 
3074 
3132 
2895 
2999 
3017 
3041 
3145 
2816 
2978 
3140 
2806 
2975 
3095 
2728 
2903 
2720 
3036 
3103 
3099 
2703 
2982 
2725 
2770 
3046 
3041a 
2786 
2822 
3014 
3122 
3059 
3419 
2708 
3058 
2977 
2721 
3041 
3052 
3043 
3172 
3015 
3009 
3170 
3022 
2721 
2931. 
2951 
3026 
3108 
2856 
2714 
3017 


Ixvi 


TABLE  OF  CASES. 


{References  are  to  Sections.'] 


State  V.  Dowe 
V.   Downs 
V.  Doyle 
V.   Drake 
V.  Driscoll 
V.   Ducker 
V.   Duffey 
V.  Duffield 
V.   Dukes 
V.  Duncan 
V.  Dunlap 
V.  Dunn 
V.  Durnam 
V.  Duzan 
V.   Dyer 
V.  Ean 
V.  Earnest 
V.   Eastman 
V.  Eberline 
V.  Eckler 
V.  Eddon 
V.   Edens 
V.  Edwards 
V.   Egan 
V.  Eisenhour 
V.   Elder 
V.   Eliason 
V.   Ellar 
V.  Elliott 


2977, 
2726, 


2722,  3094,  3095, 


2929, 


2753, 
2931, 

3142, 
2726, 


2847,  2848, 


V.  Ellis 
V.   Ellwood 
V.  Emerich 
V.   Emery 
V.   Empey 
V.   England 
V.  Enslow 
V.   Epperson 
V.   Erickson 
V.  Estes 
V.  Eubank 
V.  Euzebe 
V.   Evans 
V.  Ezzard 
V.  Fair 
V.   Fairclough 
V.  Fallon 
V.  Fannon 
V.  Farley 
V.  Farr 
V.  Farrar 
V.   Farrington 
V.  Faulk 
V.  Faulkner 
V.   Feasel 
V.   Felker 
V.   Eenlason 
V.   F'enn 
V.   Ferguson 
V.   Fertig 
V.   Fetterly 
V.   Feuerhaken 
V.   Field 
V.   Fields 
V.   Findley 
V.   Fink 
V.   Fish 
V.   Fisher 
V.   Fiske 
V.   Fitzgerald 
3035,   3040,   3141 

V.  Fitzhugh 

V.  Fitzpatriek 

V.  Fitzporter 

V.  Fitzsimon    2917, 

V.  Flanagan 

V.  Flanagin 

V.  Flander 


2777, 
2981, 
3024, 


2933, 

3013, 

3096, 
3148, 
3033, 

3014, 

3149, 

2806, 
2791, 

2850, 

3038 


2816, 

3016,  3039,  3041, 

3071, 
2774 

2934,  2939 

3041, 
2727 


2910,  3127 


2759, 
3144. 


3096, 


2760, 
3148. 
3153 

3053 

2759 
3098 


2978 
3041 
3014 
2700 
3134 
3054 
3101 
2997 
2813 
2908 
2984 
3145 
2904 
316(5 
2951 
2792 
3018 
2902 
3101 
3151 
3038 
3066 
3026 
2935 
3152 
2814 
2792 
2895 
2854. 
2857 
3040 
2721 
2759 
3170 
2784 
3050 
3172 
2829 
3109 
2979 
3059 
3030 
3107 
2969 
3140 
3050 
3139 
,  3089 
2714 
,   2781 
2739 
2991 
3077 
,  3073 
2745 
3041a 
,   2811 
3049 
3152 
2704 
3105 
3118 
3038 
2975 
2969 
3113 
2806 
3142 
2729 
2761, 
3150. 
3169 
3032 
3055 
2771 
3101 
3043 
2723 
2993 


State  V.  Flanders 
V.   Flynn 
V.   Foley 
V.   Folwell 
V.   Fontenot 
V.   Fooks 
V.   Foote 
V.   Ford 
V.   Forshner 
V.   Foster 

V.   Fourohy 
V.   Fournier 
V.   Fowler 
V.   Fox 
V.   Frahm 
V.   Franke 
V.    Franks 
V.   Freedman 
V.   Freels 
V.   Freeman 
V.   Freeport 
V.   Fritfhler 
V.   Fritz 
V.   P"'ry 
V.   Furlong 
V.   Furney 
V.  (Jadberry 
V.   Oainor 
V.   Gallagher 
V.   Gannon 

V.   Gardner 
V.  Garing 
V.   Garris 
V.   Gartrell 
V.   Garvey 
V.  Gassert 
V.   Gates 
V.   fJaul 
V.   Gay 
V.   Gedicke 
V.   George 
V.   Geyer 
V.  Gianfala 
V.  Gibbs 
V.   Gibson 

V.   Gilbert 
V.   Giles 
V.  Glahn 
V.   (ilaze 
V.   Gleim 
V.   Glidden 
V.   Glovery 
V.  Godfrey 

V.  Goetz 

V.  Goldblat 

V.  Golden 

V.  Goldman 

V.  Gonce 

V.  Gooch 

V.  Goodrich 

V.   Goodwin 
V.   Gordon 
V.   Gorham 
V.   Gosey 
V.   Goss 
V.   Graham 
V.   Grant 

V.   Graves 
V.   Gray 
V.   Grebe 
V.   Greenleaf 
V.   Green 


2970, 

2979, 
2957, 
2724, 


2934, 
2972,  3063, 

2981,  2983, 

2960,  2993, 

2965,  2969, 
3041a, 


2725, 

2727,  2894, 
2964, 


2732, 


2740, 
2744, 


2920, 
2818, 


2805, 
2714, 

2714, 


2941 
3172- 
3065 
2720' 
3036. 
2984 
3172 
3116. 
3101 
3019, 
3170' 
2972: 
3025- 
2855. 
2915. 
2910- 
2917 
2916. 
2725 
3129 
3099' 
3067 
2965- 
2991 
2784 
3090- 
2713 
3024 
2720' 
2863. 
2931, 
2938 
2908. 
3065 
.  2982 
.  2797 
2729 
3014 
,  3075 
3109- 
3043 
,  2765 
,  2941 
2899 
3033 
3084,  3085,  3089. 
2745,  2750,  2756, 


2923,  2927, 

2902,  2906 

2975 
2795 

3074 


2761,  2763 
2750,  2930 


3051 


2713 
2929,  2943 

3132 
2822,  2831", 

3028 

2718 


2873 
2861,  2863, 


2747,  2978 
2819 


2895,  2898 
2934,  2977, 
3014,  3024 

3024,  3033, 


2732,  2810,  2910, 
3036,  3051 


2848 
3166 
3167 
3035 
2797 
2778 
2951 
3134 
2832, 
3060' 
3057 
3116. 

3041a 
3114 
3041 
3036 
2866. 
2871 
2745 

,  2980 

,  2820 
3042 
2964 

.  3041 
2978. 

,  3035 
2918 

3172a 
3111 
3018 
3013, 

,  3074 


TABLE   OF    CASES. 


Ixvii' 


[References  are  to  Sections.'] 


State  V.  Greenburg 
V.   Greer 
V.   Griffin 
V.  Grimes 
V.   Groning 
V.  Grooms 
V.  Groves 
V.   Grubb 
V.  Gruss 
V.  Gryder 
V.  Guest 
V.  Guild 
V.  Gunagy 
V.  Gushenberry 
V.  Habib 
V.  Hahn 
V.   Haines 
V.  Hale 
V.   Hall 
V.  Hallock 
V.  Halstead 
V.   Ham 
V.  Hamilton 
V.  Hammond 
V.   Hampton 
V.  Hand 
V.  Handy 
V.  Haney 
V.  Hanley 
V.  Hann 
V.   Hanna 
V.  Hannett 
V.  Harden 
V.  Hargrave 
V.  Harlan 
V.  Harmon 
V.  Harness 
V.  Harper 
V.   Harrod 
V.  Harrold 
V.   Harrigan 
V.   Harris         2845, 

V.   Harrison      2838, 

V.   Harvey 

V.  Hascall         3072, 

V.   Haskins 

V.   Hasledahl 

V.   Hastings 

V.   Hatch 

V.  Hathaway 

V.   Hawkins 

V.   Ilavden 

V.   Hayes  2726, 


2953 
2912 


2792 
3111 


3114 
299; 
2975 


2808,   3000 


2877, 
3009, 


2770, 


3024, 
3033 

2n,S7 
2705 
3075 


2774 
2886 

3034 


2835, 

.3035 
2963 

3024. 
3035 


3027, 
3041 
2998 
2727 
3078 


271.3 
2859, 


3079 
3074 
2787 
2912, 


Haynes 

Hays 

Hay  ward 

Hazard 

Hazle 

Heath 

Heatherton 

Hecox 

Heldenbrand 

Helm 

Helvin 

Hemm  3141,  3142, 


Henderson 

2995,  2997 
Henn 
Hendrick 
Hendricks 
Herbert 
Herrell 
Herron 
Hertzog 
Hice 


2785, 
2999, 


3110 


3144 


3036 

3144, 
3148 

2792, 
3030 


2722, 


3063 
2832 


3120 
3075 
.   3067 
2999 
,   2916 
2977 
3165 
3092 
3172a 
2998 
,   2796 
3114 
3153 
2715 
,  3120 
,  2996 
,   298(1 
2917 
3042 
2812 
2968 
3128 
2776 
3096 
2824 
3065 
3094 
3172 
2963 
2784 
3117 
2806 
3066 
3092 
3170 
3005 
3099 
3041a 
3041 
2718 
2817 
3030, 
3136 
3166 
,  3095 
,   3091 
3169 
2972 
2998 
3041a 
,   309() 
,  3172 
,  3037 
3151. 
3170 
2917 
2847 
2720 
,  3115 
3068 
3172 
,  3148 
3052 
2716 
.   3041 
313.". 
3145, 
,   3151 
2989. 
3048 
2977 
2720 
3065 
2910 
3020 
2834 
3019 
2721 


State  V.  Hickam 
V.    Hickling 
V.    Hi<ks 
v.    Higd(jn         2753, 


Higgins 
Hill)erg 
Hill 

Hilton 

Hinkle 

Hiunant 

Hinson 

Hirsch 

Hobbs 

Ilobgood 

Hockett 

Hodge 

Hodges 

Hodgskins 

Holder 

Holedger 

Hollenbeck 

Holly  way 

Holinau 

Holmes 

Hooper 

Hope 

Hopkins 

Hopper 

Horine 

Horn 

Home 

Horton 

Hoshor 

Hossack 

Hough 

House 

Houston 

Houx 

Howard 

Howell 

Howerton 

Hoxsie 

Hovt 

Hubbs 

Hudkins 

Hudson 

Hudspeth 

Huegin 

HulT 

Hughes 


'>7'>2 


2786, 
2754,  2755, 

3051, 

3101, 

2848,  2849. 

,  2984,   31.50, 

2802, 


2714, 

2725, 

2798.  2801, 

2760, 

3062 
2721 

2972,  2986 


3035 
3095,  3141,  3142, 


2723, 


3070 
2752,  3093 
2759.  3130. 

3134 


2863 


3013,  3041a 
2933 
2716 

2866,  2871, 


Hulder 

Hull 

Hullen 

Hunnicut 

Hunt     2829 

Hunter 

Hurd 

Hurley 

Hurst 

Huston 

Hutchinson 

Hutto 

Ilyer 

Ilynier 

Hynes 

Icenbice 

Ingram 

Ireland 

Ives 

Jackson 


726,  3054,  3065 

2972,  3049, 

3040 

2978 
2980 

2910,  2913, 


3026 
3053,  3058 


2714.  2934.  2935. 
3026,  3051,  3052,  3109 


2782 
2931 
3020 
3144, 
3151  , 
3070  • 
3105  ■ 
2913. 
3152 
2863 
2944 
30r.5 
3169 
2771 
301J) 
3130 
3016 
2918 
2994 
2863 
3052 
3068 
3104 
3132 
3064 
2967 
2981> 
2999 
2991 
.3073 
3074 
29H4 
,  3044 
3148, 
3151 
2971 
301.? 
3041a 
2984 
,  3114 
,  3094 
3132. 
.  3137 
3039- 
312!> 
3170 
303."y 
2822. 
2731 
2784 
,  304:i 
.  2951 
.  3104 
2874. 
3148 
29SO 
3107 
2916 
2964 
3070. 
3079 
30S9 
2806 
3170 
29S2 
3169 
309S, 
3100 
3022 
2763 
3035 
3170 
3103 
3036 
30.-.9 
3113 
2976. 
3127 


Ixviii 


TABLE    OF    CASES. 


[References  are  to  i^ecUons.'l 


State  V.  Jacob  ^m 

V.  Jamison      2741,  2(4J,  -lou. 


2786 
280 


3041 


V.  Jarvis 
V.  Jaynes 
V.  Jean 
T.   Jeandell 
V.   Jefferson 
V.  Jeffries 
V.  Jennings 
V.  Jerome 
V.  Jeter 
V.   Joaquin 

^-    T°?°     „  97nq    27'>'>    ''726. 

Y.   Jolinson  -XOy,  ^i-'T'  ^i7e 

07QQ    2741,  2742,  2744,  2<48, 

~>lP  -859  2860    2864,  2869, 

">939    ^'943  2944    2962,  3022, 

Soli;  3057  3058    3101,  3123, 


3118 

2975. 

3170 

,,  3168 

',   2814 

3089 

3169 

,  3101 

2720 

2727 

3098 

2808 

3090 

3026 

2732, 

27  50'. 

2917. 

3030. 

3128. 

3166 


V.  Jolly 

V.  Jones  2<20, 

2843.  2844,  2846, 
3022,  3023,  3024, 


2779,  2786, 
2895.  2924, 
3027,  3028, 
3041a,  3051, 


V.  Judge 
V.  Judy 
V.  Julian 
V.  Kabrich 
V.  Kaler 

V.  Kansas  &c.  Co. 
V.  Kantler 
V.  Kasper 
V.  Raster 
V.   Kavanaugh 
V.  Kean 
V.  Keeler 
V.  Keene 
V.  Keesler 
V.  Keggon 
V.  Keith  2741, 

V.  Kellar 
V.  Kelley 
V.  Kelly 
V.  Kemp 
V.  Kempf 
V.   Kendall 
V.  Keneston 
V.  Kennade 
V.  Kennedy      2921, 
2942, 
V.  Kent 
V.  Kenyon 
V.  Kepper 
V.  Kinder 
V.  Kimble 
V.  Kimbrough 
V.  Kimmerling 
V    King  2716. 

2972,  3058 
V.  Kingsley      2978 
V.  Kinney 
V.  Kirkpatrick 
V.  Kittele 
V.  Knapp         3034, 


2742,  2750, 
3165 


2934.  2936. 
2945,  3041a 


2992, 

2717,  2937, 
3059,  3105 
3141,  3144 

2705,  2792 

3097,  3099, 


V.  Knight 
V.  Knighten 
V.  Knoll 
V.  Knott 
V.  Knutson 
V.  Koontz 

y    Ko?t|aard  2965.  2969. 

v.-  Kriechbaum    2706.  2968.;2972 

I:  Kuhlman      2785,  2787,  3120. 
V.  Kyer 
V.  Kyle 


279 
2826, 
3018. 
3037. 
3077 
2731 
3166 
3166 
2721 
3171 
3011 
3170 
2969 
3064 
3151 
2862   I 
2708 
3074 
3168 
2706 
,  2757 
3168 
2720 
3419 
2792 
3123 
3060 
2990 
3038 
2941. 
3043 
2786 
3041 
2715 
3112 
3059 
2993 
2736 
2938. 
3141 
3152 
3099 
2797 
3170 
3101, 
3104 
3016 
3102 
3033 
3170 
3147 
2991 
2786 
29  7 -J 
3170 
2972 
3125 
3001 
2703 


State  V.  Lackland 
V.   Lambert 
V.   Lancaster 
V.  Lane 
V.   Langford 
V.  La  Page 
V.  Larkin 
V.  Larkins 
V.   Latham 
V.   Lattin 
V.   Lauderbeck 
V.   Laughlin 
V.   Lautenschlager 
V.  Lavalley 
V.   Lawler 
V.   Lax 
V.   Leabo 
V.   Leaden 
V.   Leaver 
V.  Ledford 
V.   Lee  2759. 


V.   Lehre 

V.   Leicht 

V.  Lenihan 

V.  Lentz 

V.  Leppere 

V.   Letourneau 

V.   Levan 

V.   Levelle 

V.   Levy 

V.  Lewis 

V.  Libby 

V.   Lichliter 

V.   Light 

V.  Lightsey 

V.   Lilly 

V.   Lincoln 

V.   Linde 

V.   Linhoff 

V.   Linkhaw 

V.   Linthicum 

V.   IJpscomb 

V.   Lipsey 

V.   Little 

V.  IJvesay 

V.   Lockerby 

V.   Lockwood 

V.   Lodge 

V.   Long  2975, 

V.  Ix)uisville  &c.  R 
V.   Lowry  2727, 

2781 


V-  Lucas 

V.  Luce 

V.   Lucey 

V.  I.udwick 

V.  Ludwig 

V.   Lurch 

V.   Luxton 

V.  Lymus 

V.  Lyon 

V.   Lyons 

V.  Lytle 

V.   McAllister 

V.   McAndrews 

V.  McBride 

V.   McBryde 

V.   McCaffrey 

V.   McCann 

V.   McCartey 

V.   McCarthy 

V.   McCarty 

V.   McCaskey     3142, 

V.  McClellan 

V.  McClintic  3142, 

V.  McCone 

V.  McCoy 


2725 
3016,  3052 
3105 
2998,  3020.  3115 
3052.  3099 
2720,  2976 
3026 
2728.  2772,  2943 
3172 
3102 
2757,  3152 
2972 
2717,  3019,  3046 
3080 
3129.  3130 
3058 
3044 
2911,  2914 
3066 
3049 
2770.  2771.  2821. 
3035,  3065 
3169 
3000 
3149 
3019,  3036,  3040 
2721 
2976 
2822,  2823 
2716 
2709 
2966.  2984.  3141 
2714,  2802,  2863 
2975 
2785,  3006 
2829 
2765,  3166 
3046 
3172 
3013 
3064 
2881 
3046 
3039 
2731 
3166 
3142,  3152 
2822 
2770 
2976,  2980.  2983, 
3101,  3170 
Co         3064 
2988,  2990,  2992, 
2993,  2994 
2783,  3024,  3066 
3062 
3026 
2779 
3040 
2980,  2991 
2975 
3052 
2972,  3065,  3169 
3041 
2715,  2807 
2721.  2994 
3055 
3123,  3126 
''915 
2706,  3104 
3043 
3050 
2913,  3038 
3052 
3143,  3146.  3152 
2727 
3143,  3150,  3152 
3075 
2728,  3041.  3053 


TABLE   OF    CASES, 


Ixix: 


[References  are  to  Sections.'] 


State  V.  McCune  3108 

V.  McDaniel    2715,  3017,  3023, 


V. 


.  McDavid 
.  McDevitt 
.  McDonald  2802, 

.  McDonnell 
.   McDonough 
.   McDowell 
.   McGahan 
.   McGarry 
,   Mc(;ee 
,   Mcfxinn 
,   McOinniss 
,   McGlynn 

McGregor 

McGuire 

Mclntire 

Mclver 

McKee 

McKinney 

McKinzie 

McKnight 

McLain 

Mcl^eod 

McMahon 

McManus 

McXair 

McNeil 

McPherson 

McKae 

Mace  3070. 

Mack 

JIaddox 

Madigan 

Magee 

Magers 

Magone 

Magoon 

Mahan 

Maher 

Mahoney 

Main 

Mallon 

Manluff 

Manns 

Marcks 

Markham 

Markins 

Marquardsen 

Marshall 

Martin 

Marvin        2792, 


2863,   2899 
297:^ 


3063 


2939,  2941 
3151 


2964,  3063 
3068 


2953 
3071,  3072 

3074 


2965 


2910 


V.  Mason 

V.   Masteller 

V.   Matthews 

V.   Matthis 

V.  Maxent 

V.  Maxwell 

V.  May 

V.  Mayberry 

V.  Mayer 

V.  ^layor  &c. 

V.  Mazon 

V.  Mead's  Liquors 

v.   Meche 

V.   Medbury 

V.   !Meek 

V.   Meerchouse 

v.   Melick 

V.  Melrose 

V.   Melville 

V.  Merriman 

V.  Messimer 

V.  Metsch 

V.  Meyer 

V.  Meyers 


2724,  2984 
2715,  3050. 
2795,   2797. 

2970,  3023, 

2978,  3035, 


2921,   2925, 


2719,  2915, 
2802, 


2934,  2943, 
3027, 

2706,  2732,  2770, 


,  3129 
3039, 
3040 
2874 
3108 
2965. 
3156 
.^018 
3101 
3065 
3065 
30L'li 
294;! 
3152 
2714 
3171 
3()t!5 
2705 
31(i!t 
30.'^{8 
3172 
3035 
3015 
2914 
27S6 
2762 
2813 
3166 
3095 
3037 
2954 
3056 
3075 
3065 
3166 
,  3075 
2978 
3044 
2944 
2723 
,   2972 
2727 
3170 
3005 
2724 
2916 
3022 
3099 
3009 
3168 
3059 
3142 
3166 
2801. 
3068 
316<» 
3105 
3059 
3062 
2774 
2915 
2783 
2948 
3111 
3060 
3023 
3171 
2919 
2863 
2771 
2910 
2916 
2944 
3037 
3044 
3043 
2i>75 
3019 
3099 


State  V.   Meysenburg 

V.   Middleham 

V.   Miles 

V.    Miller  2632. 

2f»75.   2991,   2999 

V.   Millner 

V.   .Mills 

V.   Mims 

V.   Minard 

V.   Minck 

V.    Minor 

V.    Minot 

V.   Minton 

V.   Mitchell 

V.    Mix 

V.   Moats 

V.    Moberly 

V.   Moelchen 

V.    Molier 

V.   Momborg 

V.   Moncia 

V.    Monds 

V.   Montgomery 

2976,  2979 

V.   Moody 
V.   Moi)k 

V.    Moon 
V.   Mooney 
V.   Moore 
2810,   2941 

3074,  313.3 
V.   Moothart      2760 
V.   Moran 
r.   Morey 
V.    Morgan 
V.   Morfedge 
V.   Morris 
V.   Morrow 
V.   Morton 
V.   Mosby 
V.   Mosley 
V.   Mowry 
V.   Moxley 
V.   Mulkern 
V.   Mum  ford 
T.   Munco 
V.   Munzenmaier 
V.   Murphy        2720 

2761.   2763.   2855. 
3093.  3096 
V.   Afurray 
T.   Mush  rush 
V.   Musick 
V.   Myerfield 
V.   Myers 


2709, 
3019 


2806,  3046 


2717, 
2983 


2724. 
2981, 


2714, 


2898,  2902,  2905 

2718 

28'.)7 

2851.   2905. 

3089.  3111 

2!tH7 

2822.    2'.t7!> 

2969.   2972.  .•}()40 

27<»5 

3059a 

3(158 

3138 

2991.    2994 

3099,  3100 

2718 

2975 

2720 

3044 

3089 

3170 

2724 

3093 

2762.   2838. 

3102.   3130 

3033.  3045 

2969.   2972 

3054 

3079 

2731.   2806. 

3058,   3059. 

3147.   3170 


2725, 
3053. 
3136 
2761 


2707, 
2986, 

2715. 
2759. 
2953, 

2777. 

3020. 


2763 
3024 
3054 
3063 
3130 
2910.  2914 
763 


276: 

3038. 
2997. 


2721. 
2924. 
3098. 
2948, 


2826,  2975. 

V.  Xadal 

V.  Xappcr 

V.  Xash 

V.  Neal 

V.  Xeel  3095,  3098,  3099. 

V.  Xeimeier 

V.  X'elson 

V.  Xoll 

V.  Xettleton 

V.  Xew 

V.  Xewby 

V.  Xewcomer 

V.  Xewport 

V.  Xiles  3099 

V.  Xoland    2816.  2964! 

V.  Xorman 

V.  Xorris  2917 

V.  Xorton         2933^ 

V.  X'oyes 

V.  Xuttles 

V.  Oakley 

V.  O'Brien        2739  291'' 

V.  Odel 


2761, 

2961.  2990 

3009 

2778.  2779 

2729.  3043 

3025.  3044 

3099 

3059a 

3020 

3171 

2729,  2759, 

3052.  3058. 

3106.  3108 

3101.  3166 

2934 

3014.  3015 

2824,  2830 

2976.  3042. 

3170 

2859.  2863 

2834 

2783.  3038 

3106 

3100.  3105 

2975 

2705,  3121 

2934 

2991 

2964,  2970 

3172 

3108 

2943 

3100.  3102 

2968,  2972 

2866 


3079. 
2951. 
2924. 


3080 
2975 
2948 
2716 
2975 
2971 
2955 


Ixx 


TABLE    OF    CASES. 


[References  are  to  Sections.'] 


State  V.  Odell 
V.  O'Donald 
V.   Ogden 
V.   O'Hare 
V.   O'Neil 
V.  Orsborn 
V.  Orwig 
V.  Osborne 
V.   Otis 
V.  Overstreet 
V.   Owen 
V.   Owens 
V.   Owsley 
V.   Paggett 
V.   Pain 
V.   Palmer 
V.   Pardee 
V.   Park 
V.   Parker 
V.   Parks 
V.   Parrott 
V.   Patch 
V.   Patillo 
v.   Patrick 
V.  Patterson   2777, 

V.  Payne 

V.   Payson 

V.   Patza 

V.   Pearce         2769, 

V.  Pendergrass 

V.  Penley 

V.  Pennington 

v.  Penny 

V.  Peo 

]■         V.  Pepper 

V.  Peres 

j         T.  Perioux 

'         V.  Perley 

V.  Perry 

V.  Peterson     2702, 

V.  Pettit 

V.  Petty 

V.  Phelps 

V.  Phifer 

V.  Philpot 

V.  Philley 

V.  Phillips 

V.  Phippen 

V.  Phipps 

T.  Picker 

v.  Pierce 


2721,  3026, 


!759. 


2924,  2925. 


3098. 
2779. 
3141, 


2770, 
2844. 


2894, 


2725, 
3099 


3101. 
3036, 


2742, 
2761, 
2765. 
2725, 

2828, 
2860, 

3073, 
2931, 


3099, 
2864. 
3145, 
2744. 


2779. 
2845, 

2980, 
2895, 


3129. 
2720. 
3036. 
3106. 


2807,  2809, 
2724.  3041a, 


V.   Pine 
T.   Pippin 
V.   Pittam 
V.   Place 
V.   Plant 
V.   Plnnkett 
V.   Plym 
V.  Poindexter 
V.   Pomeroy 
V.   Porter 
V.   Poteet 
V.  Potter 
V.   Potts 
V.   Powell 
V.   Poynier 
V.   Prater 
V.   Pratt 
V.   Price 
V.  Prins 
V.  Pritchard 
V.  Pritchett 
V.   Prizer 
V.   Pucca 
V.  Punshon 


2729, 
2965, 


2970, 


3064. 
2732. 
2879. 
3022 


2862,  2863.  2866 


2855, 


2969, 
2724, 
2895, 
2774, 


3005 
2970 
2791 
2791 
2960 
2918 

3022 


2897 


3145 
2721 


2785 

2935 

3107 

3148 

3043 

2950 

3218 

3054 

3153 

2745 

3074 

2769 

2919 

3069 

3035 

3035 

3115 

3079 

2937 

2728 

3067 

2990 

2977 

3101 

2874. 

3146 

3019 

3145 

3026 

2998, 

3038 

2846 

2982 

3168 

2983 

3023 

2958 

3099 

2732 

3135 

3026 

3041, 

3227 

3038 

3030 

2957 

2977 

3104 

2835 

3152 

3075 

3172 

3092 

2956, 

3035 

2987 

2792 

2967 

3172a 

3003 

3171 

2867 

2997 

3111 

3054 

2792 

2795 

2993 

,  3035 

2774 

,  3042 

297'-* 

3002 

2994 

,  2901 

3027 

,  3146 

,  3107 

3040 


State  V.  Pyscher 

V.  Quaid  2999, 

V.  Quick 

V.  Quinlan  2785, 

V.  Rainsbarger 

V.  Rand  2777, 

V.  Rash 

V.  Ratliff 

V.  Ravenscraft 

V.  Raymond  2813,  2918,  3078, 

V.  Redemeier 
V.  Redstrake 

V.  Reed     2707,  2715,  2759, 
3041a, 

v!  Reeves    3141,  3151,  3152, 
V.  Reid  2910,  3099, 

V.  Reinhart  2969, 

V.  Reinheimer 
V.  Reitz 
V.  Renton 
V.  Repp 
V.  Reynolds 
V.  Rhoads 
V.  Rhodes 
V.  Richards 
V.  Richart 
V.  Richmond 
V.  Ricker 
V.  Riddle 
V.  Rider 
V.  Ridgely 
V.  Rigg 
V.  Riggs 
V.  Ring 
V.  Ripley 
V.  Rivers 
V.  Roach 
V.  Roan 
V.  Robbins 

V.  Roberts  2707,  2785,  2809. 
2816,  2924.  3028,  3041.  3041a. 
V.  Robertson     2916,  3041a. 

3098,  3100,  3102, 
V.  Robinson  2729,  2917,  2994, 
3018,  3038,  3042,  3053.  3058, 
V.  Rodman  2721, 

V.  Rogers         2934,  2936, 
V.  Rohfrischt 
^    Rolia 

2735,  2739,  3038, 

2801, 

2744,  2745, 


2715, 
3127, 

2720, 


3111, 


3038 


2964, 
2924, 

2941, 


V.  Rollins 
V.  Rood 
V.  Rorebeck 
V.  Rorie 
V.  Rose 
V.  Rosenberg 
V.  Ross 
V.  Roswell 
V.  Roten 
V.  Rothschild 
V.  Round 
V.  Rounds 
V.  Row 
V.  Rowley 
V.  Rucker 
V.  Ruhl 
V.  Runyan 
V.  Rushing 
V.  Russell 
V.  Ruth 
V.  Ryan 
V.  Sanders 
V.  Sanford 
V.  Sargent 
V.  Sasse 
V.  Saunders 
V.  Savage 
V.  Schafifer 


2934,  2943.  2944 


2941,  2942,  2943 
2920 


274.- 


>750 


3115 

3035,  3122 

3093 

2798 
3098 

2726 
2993 

3057,  3059 


2986 

3000 

3053 

2787 

3026 

2780 

3036 

2894 

3055 

3089, 

3171 

2728 

2997 

3026, 

3101 

3050 

3158 

3102 

2972 

3145 

2916 

3128 

3053 

2970 

3041 

2844 

8099 

3059 

3114 

2773 

3038 

3043 

3030 

3024 

2718 

2968 

2937 

2982 

2942 

8024 

3005 

2813. 

3166 

3065, 

3105 

2996, 

3172 

2724 

2944 

2812 

3041a 

3093 

2803 

2750 

2999 

2994 

2976 

3045 

2863 

3166 

3011 

2750 

2707 

,  3037 

2931 

2997 

,  2752 

3' 70 

,  3121 

.  3128 

,  3096 

2874 

,  2802 

,  3107 

3099 

,  3171 

,  2994 

3036 

,  3065 


TABLE   OF    CASES. 


Ixxi 


[References  are  to  Sections.^ 


State  V.  Sohilb 

V.  Schingen 

V.  Sohlagel 

V.  Schlcagol 

V  Schuorman 

V  S<hweitzer  2789, 
V.  Scott  2731, 


V.   Scripture 

V.   Seagler 

V.   Seals 

V.   Sears 

V.   Sellner 

V.   Semotan 

V.   Senn 

V.   Seymour 

V.   Shackelford 

V.   Shaeffer 

V.   Shafer 

V.   Shannon 

V.   Sharp 

V.   Shaw 

V.   Shea 

V.   Shean 

V.   Shelton 

V.   Shepard 

V.   Sherman 

V.   Sherod 

V.   Shettleworth 

V.   Shinborn 

V.   Shinkle 

V.   Shipman 

V.   Shippey 

V.   Shirer 

V.   Shields 


2962, 


2721, 


2792,  2798, 
3041,  3104, 


2914,  3026, 


3146 
2999 


2783.   2953 

2819,  2832, 

3041a 

3098,  3099 


3092.  3093,  3096, 


2714, 


V.   Shoaf 

V.   Shooter 

V.   Shores 

V.   Shuford 

V.   Sidney 

V.   Sienkiewiez 

V.   Silva 

V.   Simpson 

V.   Sims 

V.   Sipult 

V.  Skinner 

V.   Slack 

V.   Slagle 

V.  Slaughter 

V.   Sloan 

V.   Slutz 

V.   Small 

V.   Smalls 

V.   Smarr 

V.   Smiley 

V.   Smith  2717, 

2766,  2705,  2814, 
29.-.4,  2'.>56,  2957, 
3024,  ;!041.  3043. 
3077,   3094,  3095. 

V.  Smvth 

V.   Snell 

V.   Snover 

V.   Snow 

V.   Snyder 

V.   Somervllle 

V.   Sommers 

V.  Soper 

V.   Sorter 

V.   South 

V.  Southern  R.  Co. 

V.   Spalding 

V.   Speaks 

V.   Speller 

V.   Spencer 

V.   Spendlove 

V.  Spray 


2964, 

2720,  2826, 

2761 

2721,  2874 

2731,   2964 
2903 


2729,  2731, 
2832,  2899, 
2987,  2999. 
3046,  3065. 
3115,  3120, 
3144 

2774,  2921 
2791.  2792 
3123,  3126 


2723,   3013 
3036 


2725,  3041 


2964 

2965 

2786 

3039 

2771 

2799 

3105, 

3107 

2912 

3051 

2863 

3172 

3002 

3172 

3036 

3036 

3026 

2984 

303,S 

3139 

,   3147 

,  3171 

2855 

3145 

,   3170 

,  3014 

.   310S 

3165 

3103 

2991 

3066 

2820 

3010 

2963 

3097. 

3138 

3115 

2931 

2919 

2720 

3050 

2969 

2069 

2970 

3127 

3133 

3054 

3052 

,   3046 

3168 

,   3035 

2921 

,   3170 

,   2004 

2917 

2864 

2732. 

2902. 

3014, 

3070, 

3134, 

3152 

3165 

3042 

2706 

3165 

2714 

3053 

304  S 

3044 

3041 

3047 

2716 

2954 

3024 

31  6(! 

3073 

3038 

3137 


State  V.  Spiegel 
V.   Springer 
V.   Stackhouse 
V.   Stafford 
V.   Stair 
V.   Stalcup 
V.   Stank 
V.   Stanley 
V.   Staton 
V.   Stebbins 
V.   Steele 
V.   Stephens 
V.   Stevens 
V.   Stevenson 
V.   Stewart 

V.  Stice 

V.  Stickney 

V.  Stockton 

V.  Stoeckli 

V.  Stone 

V.  Storkey 

V.  Storts 

V.  Stoyell 

V.  Strat 

V.  Straw 

V.  Streeter 

V.  Stroud 

V.  Stubbs 

V.  Sudduth 

V.  Suggs 

V.  Sullivan 

V.   Summers 
V.  Sumner 
V.   Sutton 
V.   Swaflford 
V.   Swails 
V.   Swayze 
V.   Sweeten 
V.   Swift 
V.   Symes 
V.   Symmes 
V.   Tabener 
V.  Tabler 
V.  Tabor 
V.  Talbert 
V.   Tally 
V.   Tartar 
V.  Tate 
V.   Taylor 


3035, 
2844, 


2722 


:766, 


2920. 
2941, 


2921. 
2950 


2750.   2964 


2921,  2926.   2927 


2739,  28 


3099, 

OOO-) 


3038. 
2735 
3073 


2792, 
3103 

.3035. 
3094 

3041a 
,  2755 
.  307 

271 


3000 


2706, 
2914-,  2996,  3015, 


2724. 
3032, 


V. 

Teeters 

V. 

Teipner 

V. 

Temple 

V. 

Terrell 

V. 

Terrio 

V. 

Tessier 

V. 

Testerman 

V. 

Tettaton 

V. 

Thaden 

V. 

Thatcher 

V. 

Thawloy 

V. 

Theriot 

V. 

Thiboau 

V. 

Thomas 

V. 

Thompson 

2810 

2938.   2939. 

2941 

V. 

Thornton 

2727 

V 

Thurtell 

^• 

Tibbetts 

V 

Ti  CO 

V 

Tilly 

V 

Timmens 

V 

Tindal 

V 

Tippet 

2829, 
3051. 
3093 


3032 


2720 
3026 
2939 


2813, 
2942, 

303S. 

,  3142 


■^972 
2"934", 
2072. 

30-tO. 

,  3151 


314 


2808 

2761 

3044 

2846 

3028 

3123 

2872 

2784 

3109 

2715 

2895 

2795 

3105 

2786 

2933, 
,  2951 

3068 

2726 
3041a 

3020 

.  2081 

3109 

3054 
2745 
3079 

2931. 
2046 
3168 
.3049 
.  2796 
3107 
2723 

3036, 

3136 

3041 

3128 

.  3145 

,  3087 

2834 

.  3018 

XI  20 

2".ns 
:^o43 

3028 
2063 
,  3062 
3015 
3030 
2774 
3041 
3037 
2.>*54. 
30()7, 
3105 
.■{066 
3107 
2962 
3045 
2709 
2981 
3017 
3036 
2944 
2981 
303!> 
3075 
2943 
.  3017 
2036, 
2991. 
.S041a 
,  3153 
2721 
3170 
2944 
3017 
.  3140 
2954 
3028 


Ixxii 


TABLE   OF    CASES. 


[References  are  to  Sections.'] 


state 

V.  Tommy 

3023 

State  V.  Wheeler 

2796, 

3067. 

3102, 

V. 

Tompkins 

2965 

2970 

3142 

3146 

V. 

Toney 

3172 

V.   Whidbee 

2978 

V. 

Toombs 

9700 

3065 

V.   Whit 

2911 

V. 

Townsend 

3127 

3128 

V.   Whitcomb 

2805 

V. 

Tramniell 

2931 

V.   White 

3163 

3171 

V. 

Trolsou 

2906 

2972 

V.  Whitesell 

3101 

V. 

Trout 

2706 

2728 

V.   Whitson 

2707 

3021 

V. 

Trove 

2732 

3066 

V.   \\hitteniore 

3079 

3090 

V. 

Tucker 

3170 

V.   Wideman 

3172 

V. 

Tull 

2971 

2989 

.  2995 

2996 

V.   Wilbourne 

2973 

V. 

Tumey 

2971 

V.   Wilcox 

3102 

3172 

V. 

Turley 

2978 

V.   Wilkerson 

2983 

2993 

V. 

Turner 

2707, 

2914. 

3037. 
3052 

3038. 
3101 

V.   Wilkins 
V.   Wilkinson 

2724 

3099 
2745 

V. 

Turpin 

3038 

3041 

V.   Williams     2703, 

2708, 

2720, 

2723. 

V. 

Tutt 

2959 

2726,   2732,   2897, 

2918, 

2'.>54, 

2;t7!», 

V. 

Twitty 

2954 

2955 

2981,   2988.   2990. 

2995, 

2'.)'.»7, 

.■!0."i5. 

V. 

Twogood 

2835 

3073,  3090,   3091, 

3093, 

3165, 

3166. 

V. 

Tyrrell 

2913 

3170 

V. 

ririch 

2874 

V.   Williamson 

2720, 

2786, 

2911, 

V. 

T'mble 

2785 

2787 

3101 

V. 

I'pham 

2721 

V.  Willis 

3011 

V. 

Valwell 

2720 

2917 

V.   Wilson         2732, 

2909, 

2923, 

2946, 

V. 

Vance 

2720 

2970,   2982,   2983. 

3032, 

3051. 

3059, 

V. 

Vanderbilt 

2977 

2984 

3080 

3128 

3170 

V. 

Van  Houten 

2765 

V.   Wiltsey 

2792 

V. 

Van  Winkle 

2786 

V.   Winchester 

2732 

V. 

Van  Wye 

3068 

V.   Windahl 

3044 

V. 

Vatter 

2816 

V.   Wingo 

.3049 

3051 

V. 

Vaughan 

3018 

3041 

V.  Winkley      2792, 

2799, 

2800. 

2803, 

V. 

Vawter 

2765 

2861 

V. 

Verry 

3169 

V.   Winner 

2708 

2934 

V. 

Vicknair 

3172a 

V.  Winningham 

3168 

V. 

Vincent 

3023 

3030 

V.   Winstandley 

3080 

V. 

Vinson 

3057 

V.   Winter 

3028 

V. 

Vorback 

2984 

V.   Wintzingerode 

3026 

V. 

Voshall 

3122 

V.   Wisdom 

3160 

V. 

Wade 

3000 

V.   Wister 

2731 

V. 

Wagner 

3030 

V.   Witham 

2792 

V. 

Wahl 

3067 

V.   Witt 

3046 

V. 

Wait 

3169 

V.   Wolf 

3060. 

3099 

V. 

Walke 

3108 

V.   Wolfe 

3062 

V. 

\A'alker 

2934, 

2936, 

2940, 

2941. 

V.   Wood 

2848 

3033, 

3045 

^ 

942,   2995. 

3014, 

3015, 

3017, 

3020. 

V.   Woodfln 

3166 

3021, 

3030. 

3041a 

V.   Woodrow 

2998 

T. 

Wallace 

2790. 

2S00 

V.   Wiiodruff 

3095 

V. 

Waller 

2792. 

2895 

V.  Woodward  2854, 

2898, 

2905, 

2969. 

V. 

Wallick 

2972 

3017 

V. 

Walters 

\ 

3066 

V.   Woodword 

3132 

V. 

Walton 

2975. 

2976 

V.   Woolvprton 

3090 

V. 

Ward 

2723, 

2727. 

2810, 

2812, 

V.   Worden 

3109 

815,  2816, 

2914, 

3017, 

3092. 
3096. 

3093. 
3118 

V.   \\'orkaan 
V.   Worth 

3166 
3065 

V. 

Wardlaw 

3166 

V.   Worthen 

2915, 

3034 

V. 

Warford 

2910. 

2912 

V.   Wrand 

2917 

V. 

Warner 

2732, 

3041a 

V.   Wright         2728. 

3023, 

3035, 

3042. 

V. 

Warren 

3041. 

3041a 

3044 

V. 

Waterman 

2731 

V.   Wvatt 

2828, 

3136 

V. 

Waters 

3007 

V.   Wvckoff 

2772 

V. 

Watkins 

2912 

V.  Wylde 

2863 

V. 

Watson 

2771, 

2804, 

3100, 

3102, 
3107 

V.   Wynne 
V.   Wyse 

2899 
3030 

V. 

Watts 

3172 

V.  Yeargan 

2726 

V. 

Way  2791, 

2792, 

2795 

2796, 

2797 

V.  Yee  Wee 

3032 

V. 

Wayatt 

3139 

V.  Yocum 

3103 

V. 

Weaver 

2942 

3057. 

3058 

V.   Yokum 

3040 

V. 

Webb 

2978 

V.   York 

3122 

V. 

Weber 

3172 

V.  Younger      2806, 

2920. 

2931. 

2933, 

V. 

Welch 

3000, 

3024. 

3026. 

3027, 

2979, 

3013. 

3014. 

3065 

3042, 

3044. 

3093. 

3104 

V.   Zeigler 

3041a 

V. 

Weldon 

2917 

V.  Zellers 

3041 

V. 

Wellman 

3052 

V,  Zichfeld 

2716, 

2866. 

2871 

V. 

Wells 

3065, 

3145 

V.   Zimmerman 

2732. 

2991 

V. 

Welsh 

3022, 

3023 

V.   Zorn 

2729 

V. 

Wenz 

2757. 

3143 

V.   Zumbunson 

3049 

V. 

West 

3026. 

3046. 

3065 

Stead  V.  Course 

3208, 

3211 

V. 

Westfall 

2939, 

3032, 

3043 

Steadman  v.  State 

2915, 

2972, 

3213 

V. 

Whaley 

2735. 

2863 

Stearns  v.  Reidy 

3213 

TABLE    OF    CASES. 


Ixxiii 


[References  are  to  Sections.'] 


Stebbina  v.  Five  Mud-Scows 

3360 

Steber  v.  State 

3070 

Steele  v.  I'eople 

2954, 

299U 

V.   State 

3041 

V.  Tliacher 

3244 

Stefani  v.  State 

3009, 

3091 

Steiner  v.   I'eople 

284S 

Steinke  v.  State 

3101 

Stephen  Hart,  The 

3341 

Stephen   Morgan,  The 

3251 

Stephen  v.  Myers 

2823 

V.   State 

3100 

Stephens  v.  Gardner  Creamery  Co. 

3064 

V.  orniaa 

3198 

V.  State           2703, 

2783, 

3045, 

307.-.. 

3080, 

31  OS 

Stephenson  v.  Stephenson 

3i;o7 

Sterling,  The 

3251 

Sterling  v.  Warden 

l!S.-.7 

Stern  v.  State 

2726, 

3010 

Sterne  v.   Woods 

3216 

Steuart  v.  (Jladstone 

3193, 

3214 

Stevens  v.  Cooper 

3174 

V.   I'eople 

3099, 

3100 

V.  Post              3199 

3202, 

3204, 

3205 

V.   State 

2937 

Stevenson  v.  Gregory 

3230 

Stewart  v.  State  2792, 

2937. 

2984, 

3035, 

3041,  3050 

3206, 

3232, 

3236 

Stiewell  v.  State 

3166 

Stiles  v.  Stiles 

2792 

Still  well  v.  Badgett 

3201 

Stitz  V.  State 

2719, 

2810 

Stoltz  V.  People 

3009 

Stone  V.  Clay 

2999 

V.  Jewell,  The 

3352 

V.   Langworthy 

3066 

V.  Mississippi 

2011 

V.   State            2720, 

2956, 

3036, 

3065. 
3170 

V.  Welling 

3216 

Stonington  Sav.  Bank 

V.  Davis 

3221 

Stoops  V.  Commonwealth 

2777 

Story  V.  Gammell 

3215 

V.  Livingston 

3189, 

3223, 

3228. 

3229. 

3232 

V.  State 

2847, 

2849 

Stouffer  V.  Maehen 

3199 

Stoughton  V.  State 

3064 

Stouteuburgh  v.  Tompkins 

3215 

Stover  V.  I'eople 

2721 

Stow  v.  Converse 

2725 

Stockdale  v.   State 

3166 

Stocken  v.  Dawson 

3233 

Stocking  V.  State 

3046 

Stockton  V.  State 

2848 

Stoffer  V.  State 

2849 

Stoflfregan  v.  Mexican 

Prince 

,  The 

3273, 
3277 

Stokely  v.  State 

3050 

Stokes  V.  I'eople 

3019 

V.   State 

2915, 

3044 

V.  TTnited  States 

29!)1 

Strahan  v.  State 

3H;6 

Strang  v.  People 

3093, 

3101, 

3105 

Strange  v.  Commonwealth 

2942 

V.  State 

3035 

Strathnevis,  The 

3352 

Street  v.  State 

27S4 

Stringfellow  v.  State 

3046 

Stripland  v.  State 

2778 

Strode  v.  Magowan 

2862 

Strong  V.   State     2965, 

2975, 

2976. 

3057 

Strother  v.  State 

3106 

Strout  V.  Foster 

3379 

Stuart  V.   People 

2727, 

2918, 

3049 

Stucky  V.  Stiicky 

3213 

Studdard  v.  Linville 

3079 

Studstill  v.  State 

2778 

Success.  The  3323, 

Sudduth  V.  State 
Sullivan  V.  McLenans 

V.   State  3033.  3045, 

Summit,  The,  3367, 

Summons  v.  State 
Sumner  v.  Jones 

V.    State  2709,    2713,   2719, 

Sunbeam,  The 
Sunset  Tel.  Co.  v.  Kureka 
Suiiney  v.  llolt 
Sunnyside,   The 
Superior,   The 
Surget  V.  Byers 
Susan,  The  3296, 

Sutlier  V.  State  3142, 

Sutlierland  v.  State 
Sutterfield  v.   Magowan 
Sutton  V.  I'eople 

v.   State 

V.   Wilson 
Suydam  v.  Dequindre 
Swaim  v.  T'nited  States 
Swain  v.  State 
Swallow,  The, 
Swan  V.  Commonwealth 
Swanston  v.   Lishman 


3353 
3143 


3092 


3402 


State 
Sweat  V.  State 
Sweeden  v.  State 
Sweet  V.  Parker 
Swigart  v.  State 
Swindle  v.  State 
Swinton  v.  Molloy 
Sydsorff  v.  Keg. 
Sykes  v.  People 

v.   State 
Sylph.  The, 
Sylvester  v.  State 
Synon  v.   People 
Synnott  v.  Shaughnessy 
Syracuse,  The  3262, 


T 


2792,  2797 


3014 
3272 


T.  F.  Oakes,  The 

Taft  V.  Taft 

Taggart  v.  Roldin 

Talbfi-t  V.  State  3049, 

Talbot  V.   Jansen 

Talbott  V.  Wakeman 

Taliaferro  v.  Commonwealth 

Taney  v.  State  2894, 

Tanner  v.  Commonwealth 

V.   State 
Tarlton  v.   McGawley 
Tarver  v.  State 
Tate  v.  I'ensacola  Gulf  &c.  Co. 

v.   State 
Taunton  v.  Taylor 
Taylor  v.   Batten 

V.   Cawthorne 

V.  Commonwealth     2967,  2984, 


V.   Kilgore 

V.   Morton 

V.   People 

V.   Robertson 

V.   State 

3091. 

V.   T'nited   States 

V.   Young 
Taylor's  Case 
Telegraph.  The 
Ten  Hogsheads  of  Ru 
Tennasscrim.  The 
Teoli  V.  Xardolillo 
Terrell  v.  State 


.3041,  3043, 

3221, 

3010.  3032.  3035, 

3092,  3093,  3104, 


2890, 


3328. 


3.342 
3166 
3215 
3065 
3368 
2702 
.•^175 
3010 
3324 
3195 
3393 
3251 
3300 
3214 
3.360 
3152 
30:53 
3226 
3098 
2955 
3217 
3230 
3404 
3041a 
3260 
2917 
3287 
2804 
2714 
2835 
3199 
3010 
3109 
3427 
2925 
2714 
3105 
3392 
3024 
3042 
3212 
3384 


3300 
3213 
3199 
3055 
3320 
3262 
2918 
289G 
3050 
2938 
2951 
2830 
3213 
3007 
3200 
3286 
3223 
3042. 
3043 
3224 
3201 
3066 
3234 
3085, 
3108 
2957 
3223 
2891 
3379 
.3329 
3364 
3228 
2856 


Ixxiv 


TABLE   OF    CASES. 


IBeferences  are  to  SectionsJ] 


Territory  v.  Bowen 

V.   Burns 

V.  Chartrand 

V-  flark  ____ 

V.  Dwenger  ^m, 

V.  Egan 

V.  Ely 

V.  Gutierez 

V.  Hall 

V.  Keyes 

V.  Mahaffey 

V.   Lucero 

V.   Meyer 

V.  Neligh 

V.  Romine 

V.   Stone 
Terry  v.  Commonwealtn 

V.   Robbins 

V.   State 
Tervin  v.  State 
Tesney  v.  State 
Teter  v.  Teter 
Teutonia,  The 
Texas  &c.  Co.  v.  Adoue 
Thalheim  v.  State  2968, 

Thames,  The 
Tharpe  v.  Gisburne 
Thayer  v.  Davis 

V.   State 

V.  Thaver 
Theodor  Korner,  The 
Therasson  v.  People 
Theta,  The 

Thexton  v.  Edmonston 
Thiede  v.  Territory 
Thirty  Hogsheads  of  Sugar  v 


Thomas,  In  re 
Thomas  v.  Cincinnati  &c.  R. 
V.   Commonwealth 
V.  Dawson 
V.  Gray 

V.  People  2979 

V.   State  2724,  2808. 

3041,  .3042,  3044,  3058, 
V.  United   States 
Thomas  Jefferson,  The 
Thomas  Watson,   The 
Thomas  Worthington,  The 
Thompson  v.  Clark 
V.   Commonwealth 
V.   Paterson  &c.  R.  Co. 
V.   Philadelphia,  The 
V.   Stacey  Clarke,  The 
V.   State  2873,  2897, 

3000,  3052,  3074,  3076, 
3102,  3104,  3138, 
V.  Thompson 
V.   Tolmie 
Thonley,   The 
Thorington  v.  Carson 
Thorne  v.  Hilliker 
V.  White 

Thornell  v.  People  

Thornley,   The       2993,  33oo 
Thornton  v.  Ogden 

V.   State 
Thorpe  v.  Thorpe 
Thrawley  v.   State 
Thurmond  v.  State 
Thweatt  v.  State 
Tice  V.  Reeves 
Tilghman  v.  Proctor 
Tilley  v.  Commonwealth 
Tilly  V.  State 
Tim'mons  v.  State 
Tinney  v.  State 
Tios  V.  Radovich 


3065 
3166 
3065 
3059a 
2780,   2784 
3044 
2980,  2982 
3018 
3041 
3102 
3172a 
3023 
2969,  2971 
2786 
3046 
3065 
2996 
3221 
3025,  3046 
3053 
3024,  3042 
2865 
3251 
2920,   2951 
2969,  2971, 
2972 
3382 
2959 
2796 
3122,  3127 
2792,  2796 
3290 
2981 
3348.  3366 
3212 
3026,  3027 
Boyle 

3318,  3320 
3421 
Co.         2951 
3036 
3234 
3271 
3011,  3015 
2816.  2978, 
,  3070,   3172 
3270 
3240,  3257 
3326 
3302 
3198,  3205 
2937 
3067 
3312 
3499 
2946,   2993, 
3099.  3100. 
3170,   3172 
3194,  3211 
3419 
3362 
3197 
3231 
3298,  3300 
2714 


2976, 
Pennsylvania 


Cook 


Tipton  v.  State 
Tittle  V.  State 
Titus  V.  State 
Tobin  V.  Wilson 
Todd  V.  State 
V.  Sterrett 
Toledo  &c.   R.  Co. 

Co. 
Toler  V.  State 
Toll  V.  State 
Tolliver  v.  State 
Tolomeo,  The, 
To! tec  Ranch  &c.  ' 
Tomlinson  v.  Lindley 
Tompkins  v.  Tompkins 
Toney  v.  State 
Tonge's  Trial 
Topliff  V.  Jackson 

V.   Topliflf 
Totten  V.  Pluto 
Toulme  V.  Clark 

Town  V.  Needham 

Townley  v.  State 

Townsend  v.  Mcintosh 

Townshend  v.  Stangroom 

Tracy  v.  State 

Trail  v.  State 

Train  v.  Bennett 

Traverse  v.  State 

Traylor  v.  State 

Trecartin  v.  Rochambeau,  The, 

Tread  well  v.  Joseph 
V.   Lennig 

Trenchard  v.  Warner  _ 

Trials  of  Twenty-Nine  Regicides 

Trimble  v.  Territory 
Trimmier  v.  Liles 
Trinidad,    Island   of 
Tripp  V.  Flanigan 
Trogdon  v.  Commonwealth 


3081, 


2797, 


3363,  3364 
3213 
3028 
3236 
3038 
2997 
2750 
2873 
3236 

2706,  3029 
3059 
2997 
2714 
3300 


Troy  &c.  Factory  v.  Corning 

True  Blue,  The 

Truro,  The 

Truslow  V.  State 

Tuck  V.  Downing 

Tucker  v.  Hyatt  2936,  2938, 
V.  People  ^_,„ 
V.  State     2732,  274o 

Tullay  V.  Reed 

TuUy  V.  Commonwealth 

Turley  v.  People 
Turnbull  v.  Crick 
Turner  v.  Black  Warrior 

v.   Knell 

V.   Owen 

V    StaTe'         2720,  2723, 
'3028,  3036,   3042,   3046, 
Turpin  v.  State 
Tuttle  V.  People 
Twav  V.   State 
Twichell  v.  Commonwealth 
Two  Brothers.  The 
Two   Fannys.  The 
Two  Friends.  The 
Twyford  v.  Trail 
Tyler  v.  Pomeroy  3419,  3420, 

v.  Simmons 

V.  Todd 

V.  United  States 
Tyrrell  v.  State 


Udderzook  v.  Commonwealth 
Umphrey  v.  State 


2975. 
2980 
3228 


2942 
2863 
2750 

2775, 


3259. 

3299 
3092 
2845. 
3120 


2924 


3426 
3225 


3026 
3052 
3101 
3197 
2984 
3211 

2951 
2727 
3004 
3121 
3352 
3175 
3199 
3207 
3065 
3164 
3227 
3228 
3271 
3199 
3199 
3086 
3206 
3215 
3139 
3111 
3296 
3026 
2708 
3293 
3259 
3199 
3197 
3159. 
3164 
3099 
3176 
3347 
2726 
2976, 
2981 
3229 
3363 
3251 
3055 
3213 
,  2991 
,  2873 
,  2798 
2854 
2777, 
2784 
3138 
3195 
3260 
3198 
3305 
3093 
3026, 
3129 
3125 
3086 
3102 
3431 
3340 
3293 
3320 
3233 
3427 
3230 
2991 
2968 
2720 


3025 
3056 


TABLE   OF   CASES. 


Ixxv 


[References  are  to  Sections.] 


Undaunted.  The 

Underwood  v.  Commonwealtn 

Unger  v.  State 

Union,  The 

Union  &e.  Refinery  v.  Mathiesson 

Union  Bank  v.  Geary 

Union  I'ass.  K.  Co.  v.  Baltimore 

i:nited  Shirt  &c.  Co.  v.  Pitzile 

United  Slates  Bank  v.  Beverly 

United  States  &c.  Co.  v.  Iron  Mola- 

ei-s'  Union 
United  States  v.  Abram 

V.   Adams  2904, 

V.  Addyston  &c.  Co. 

V.  Armstrong 

V.  Arjona 

V.   Ashton 

V.  Aucarola 

V.  Babcock 

V.  Baldridge 

V.  Ball 

V.  Barnaby 

V.   Barrett 

V.   Battiste 

V.  Benson 

V.  Betsey,  The 

V.   Bevans 

V.   Bogart 

V.   Borden 

V.   Breese 

V.   Brouks 

V.   Burns 


2739, 
2937, 


29i 


29.53, 


V. 


Burr    3155,  3156,  3157,  3158 
California  &c. 

^^'^^-  2707.  2920,  2921, 

2935,  2937,  2938, 


V.  Cassidy 


V.  Clark 

V.  Cole 

V.   Coombs 

V.  Coons 

V.  Craig 

V.   Crane 

V.  Crow  Dog 

V.  Cruikshank 

T.  Curtis 

V.   De  Amador 

V.   Doebler 

V.   Doyle 

V.   Dunbar 

V.   Dunn 

V.   Eaton 

V.  Elliott 

V.  Erskine 

V.   Farragut 

V.   Fenwick 

V.   Fitzgerald 

V.   Fletcher 

V.   Forbes 

V.   Fries 

V.   Frisbie 

V.   Furlong 

V.  Garcelon 

V.  Gilbert 

V.  Gideon 

V.  Gilbert 

V.   Givings 

V.  Grace  Lothrop 

V.  Gray 

V.  Greathouse 

V.  Greiner 

V.  Groesbeck 

V.  Grush 

V.  Guiteau 

V.  Ilaiues 

V.  Hair  Pencils 

V.  Hall 

V.  Hamilton 

y.   Hand 


2955,  29 


3075, 


2922, 
3128 


3071,  3083, 

3457, 

3155,  3156,  3161, 

3170, 

3314,  3315, 


3154 


3361 
3028 
2774 
3308 
3224 
3199 
3195 
3230 
3198 

2951 
2952 
2970 
2920 
3018 
2952 
3299 
2750 
3074 
3464 
3028 
2822 
2947 
2732 
2922 
3244 
3246 
3421 
3499 
2972 
2995 
2955 
3163 
3211 
2909 
2922, 
2947 
2870 
2936 
3246 
3089 
2957 
2779 
3022 
2952 
3090 
3088 
2993 
2938 
2935 
3399 
2702 
2951 
3085 
3347 
3123 
2953 
3484 
3484 
3162 
2938 
3246 
307.") 
3317 
3172 
2730 
3299 
3292 
30(!3 
3158 
3150 
2870 
3246 
3419 
3499 
321 7 
3080 
3246 
2831 


United  States  v.  Hanway 

V.  Harmon 

V.  Harper 

V.  Hartwell 

V.  Hayward 

V.  Hemmer 

V.  Hiuman 

V.  Hirsch 

V.  Hodges 

V.  Hopkins 

V.  Hoxie 

V.  Hunter 

V.  Jackson 

V.  Jernegan 

V.  Johnson 

V.  Jones 

V.  Jourdine 

V.  Kane 

V.  Kelly 

V.  Kenneally 

V.  Kershaw 

V.  King 

V.  Kuhl 

V.  Lancaster 

V.  Landers 

V.  Landsberg 

V.  Lantry 

V.  La  Vengeance 

V.  Lee 

V.  Long 

V.   Lowenstein 

V.   Mackenzie 

V.   Males 

V.   Mallard 

V.   Marcus 

V.   Matilda 

V.    Matthews 

V.   McBosley 

V.   McFarland 

V.   Meagher 

V.   Miller 

V.   Mitchell 


V.   Morel 

V.   Morrow 

V.  Moses 

V.   Moulton 

V.   Munroe 

V.   Nailor 

V.   New   Bedford  Bridge 

V.   Noble 

V.  Nunnemacher 

V.  Nye 

V.  olney 

V.  One  Hundred 

Casks  &e. 
V.  Open  Boat 
V.  Ortega 

V.  Ortiz 

V.  Page 

V.  Patterson 

V.  Paul  Shearman 

V.  Peay 

V.  Peters 

V.  Peterson 

V.  Kader 

V.  Kindskopf 

V.  Rodgers 

V.  Ross 

V.  Roudenbush 

V.  Route 

V.  Russell 

V.  Sacia 

V.  Sally.  The 

V.  Sander 

V.  Schneider 

V.  Scott 

V.  Seagrlst 


3154,  3155, 
3158,  3160 
3t.i68 
2964,  2972 
2772,  2774,  2778 
3328,  3329 
3499 
2954,  2955 
2935,  2947 
3158,  3163 
2952 
3158 
3259 
3053 
2860 
2921,  2929,  2937 
2991,  3129,  3498 
3063 
2951 
3499 
2957,  2961 
2786 
2952,  2953,  2955,  3292 
2952,  2953 
2921,  2927 
3490 
3080 
2912 
3244.  32.^)7 
3156.  3157 
298.'i 
3111.  3115 
3398,  3419,  3426 
3068 
3071 
2957 
3270,  3338 
2714 
2897 
3123 
3044 
3065 
3155,  3156,  3158,  3159. 
3161,  3313 
3246 


2952 
2953 
3052 
3216 
3065 
3241,  3246 
2954 
2938 
3299 
3011 
Twenty-three 

3266 

3326 

2836 

2993 

3457 

2951 

3323,  3324,  3328 

2S70 

3320 

3247.  3499 

2709,  2726 

29:'.8 

3246.  3247 

2759.  2783.  3246 

2953.  2961 

3498 

2718,  2952,  3439,  3498 

293S 

3244 

2970 

3023.  3030 

3200 

3246 


Ixxvi 


ifABLE    OF    CASES. 


IReferences  are  to  Sections.'] 


United  States  v.  Searcey 
V.   Shapleigh 
V.   Sharp 
V.   Shellmire 
V.   Singleton 
V.   Smith 


3314, 


2922,  2952, 


2732, 
2863, 


2870,  2947,  3009, 
8246, 
V.  Snow 
V.  Staly 
V.  Stevens 
V.  Stockwell 
V.  Taranto 
V.  Taylor 
V.   Tenney 

V.  Ten  Thousand  Cigars 
V.  Thompson  2947, 

V.  Trans-Missouri  &c.   Asso. 

V.  Turner 

V.  Volz 

V.  Walsh 

V.  Watson 

V.  Weber  2920 

V.  Williams  2708, 

V.  Wiltberger 

V.  Wood  3087,  3088. 

V.  Workingmen's  &c.  Council 

V.  Zes  Cloya 
TTodegranh  v.  Commonwealth  2889, 
2892,  2898,  2894, 
TTpstone  v.  People 
Upthegrove  v.  State 
tlrquhart  v.   State 
TTsher  v.  Commonwealth 
ITsom  V.  State 

Usselton  v.  People  2774 

Utica  Ins.  Co.  v.  Lynch 
TTtterback  v.  State 
Utzman  v.  State 


3463 
3498 
3499 
2953 
3073 

3068, 
3499 
2870 
3299 
3063 
3123 
2954 
3024 
2866 
3253 
3499 

2920, 
2951 
2996 
3090 
3083 
2946 
2950 
2953 
3246 
30S9 
2951. 
3199 
2745 
2891, 
2896 
2729 
3038 
3090 
2819 
3133 

,  2781 
3235 
2884 
3042 


Vaughan's  Case 

Vaux's  Case 

Vallance  7.  Everts 

Vallandigham,  Kx  parte  3419, 

Van  Buren  v.  People  2981. 

Vanderzer  v.  McMillan    2795,  8199, 

Van  Epps  v.  Van  Epps    2792,  2794, 
Van  Fossen  v.  State 
Van  Horn  v.  Van  Horn 
Van  Houten  v.  State 
Vann  v.  State 
Van  Namee  v.  Oroot 
Van  Ness  v.  Van  Ness     3228,  3233, 
Vansciver  v.  Bryan 
Van  Slvke  v.  Hyatt 
Van  Straaten  v.  People 
Vanvactor  v.  State  2838, 

Van  Vranken,  Ex  parte 
Varuna,  The 
Varner  v.   State 
Vasser  v.  State 
Vaughan's  Trial 
Vaughan  v.  State  2777, 

2804,  2831, 
VawteP  V.  Bacon 
Vpendam,  The 
Vegelahn  v.  Guntner 
Veile  V.  Blodgett 
Venezuela,  The  3267, 

Venice.  The 
Venters  v.  State 
Versailles,  The 
Vibilia,  The 

Vickers  v.  Buck  Stove  &c.  Co 
Vidal  v.  Girard 


2844 
3294. 


27SO. 
3226, 

3351, 
2920, 
3198, 
3268 


3296 


3161 
2730 
3170 
3426 
2982 
3200, 
3234 
2971 
2873 
2951 
3068 
3041 
3217 
3234 
3213 
3227 
3059 
2845 
3421 
3298 
3054 
3109 
3154 
2786, 
3236 
3212 
3352 
2951 
3199 
,  3271 
3502 
3028 
3363 
3300 
3177 
2891 


3323, 
3295, 


3244, 
Sundberg 


Vigel  V.   Hopp 

Vigilantia,  The 

Villa  V.   Herman 

Ville  de  Varsovie 

Vincent  v.  Stinehour 

Virgil,  The 

Virgin.   The 

Virginia  Ehrman,  The 

Virginia  «&c.   Ins.   Co.   ■> 

Vives  V.  United  States 

Vivid,  The 

Voght  V.  State       3003,  3004,  3009, 

Vollmer  v.  State  3018, 

Von  Tobel  v.  Ostrander 

Vosburg  v.  Putney 

Vowells  V.  Commonwealth 

Vrouw  Hermina.  The 

Vrow  Anna  Catharina 

Vrow  Elizabeth,  The 

Vrvheid.   The  3345, 

Vulcan  &c.  Co.  v.  Hercules  &c.  Co. 


W 

Wabash  R.  Co.,  In  re 

Wade  V.  State  2707, 

Wadsworth  v.   Duncan 

Waggoner  v.  State 

Wagner  v.  State  30.59, 

Wagoner  v.   State  2977, 

Waidley  v.  State 

Wait  V.  State 

Wakeman   v.    Grover 

Wales  V.  Whitney 

Walker  v.   Cronin 

V.   Kinnare  3218, 

V.   Eogan 

V.   Sauvinet 

V.   State  2724.   2797.  2916. 

3000,  3014,  3039,  3044.  3059. 

3090,  3091,  3166,  3167, 

V.  Walker 
Wall  V.  State 
Wallace  v.  State  2706, 

V.  United  States 
Waller  v.  State 

Wallis  V.  State  2964, 

Walls  V.  State  2722,  2860, 

Walrath  v.   State 
Walsby  v.  Aniey 
Walsh  V.  Agnew 

V.  Association  Master  Plumbers 

V.   People  2897.  3036, 

Walters  v.  State     2720,  2724,  2727, 
Walton  V.  Canon  City 

v.   State  2894,  2910,  3000 

Wanderer.  The  3251 

Wantland  v.  State 
Ward  V.  Abbeville 

V.   Fashion,  The  3271, 

V.   Paducah  &c.  R.  Co. 

V.   Peck 

V.   People 

V.   State 

V.   Wa  rd 
Warden  v.  State 
Wardlaw  v.  Erskine 
Ware   v.    Richardson 

V.   State  2720.  2727.  2838. 

Waring  v.  Clarke    3240.  3244,  8246 
Warmoth  v.  Commonwealth 
Warner  v.  Commonwealth 

V.   State 
Warrace  v.  State 
Warren   v.    Bunch 

V.   Kelley 

V.  Lawson 

V.  Moody 


3198 
3332 
3300 
3347 
2838 
3369 
3250 
3251 
3263 
2971 
8253 
3014 
3021 
3231 
2818 
2731 
3335 
3328 
3343 
3346 
2951 


2951 
2713 
3193 
3020 
3116 
3094 
3055 
2910 
3199 
3419 
2951 
8221 
2991 
3431 
2972. 

3077, 
3172 
3216 
2847 
2749 
3041 
3092 
2970 
3166 
2772 
2951 
3197 
2951 
3043 
2731 
3171 
3201 

,  3393 
2709 
3236 
3369 
3221 
3244 
3065 
3000 
3226 
2774 
3222 
3200 

3059a 

,  3375 
3050 
2863 
3006 
2714 
3183 
3240 
8226 
3263 


TABLE   OF    CASES. 


Ixxvii 


[References  are  to  Sections.l 


Warrick,  Ex  parte 
Warrior,  The 
Warwick  v.  State 
Wash  V.  Commonwealth 
Washburn  v.  I'hillips 
Washington,  The 
Washington  v.  State 


Washington  Irving,  The 
Wasp.  The 

Waterbury  v.  Sturtevant 
Waterhouse  v.  Comer 
Waterman  v.  Buck 

V.   Curtis 
Waters  v.  State 

Watkins,  Ex  parte  3401,  3415,  3425.  3431 
Watkins  v.  United  States  3041a 

Watson,  In  re  2860 

Watson  V.  Commonwealth 


3017 
3  2  it  4 
3075 
2953 
3424 
3251,  3372,  3395 
2910,  2912,  3024. 

3079,  3106 

3259,  32(;o 
3355 
2939 
2951 

3234,  3236 
3221 

2910,  2914 


2959 
3312 
3199 
2979 
2759,  2897,  2905,  2979 
2706 


V.  Cresap 

V.  King 

V.  Palmer 

V.   People 

V.   State 
Watt  V.   People 

V.   Starke  3175 

Watts  V.  Eufaula  Nat.  Bank  3199 

V.   State  2783 

Wax  V.  State  2981 

Way  V.   State  3059 

Wavbright  v.  State  2724 

Weathered  v.  Bray  3066 

Weatherpen  v.   Laidler  3296 

Weaver  v.   Hush  2852 

V.   People  3014 

V.   State  2792,  3022 

Webb  V.  Pell  3206 

V.   State  2709,   2719,   2965.  3017. 

3024,  3036 

Weber  v.  Weitling  3231 

Webster  v.  State  31  70 

Wedgwood's  Case  2800,   2801 

Weed  V.   People  2760,  2767 

V.   State  3095 

Weed.  In  re  3218 

Weideman  v.  State  3065 

Weightnovel  v.   State  2724 

Weinberg  v.   State  2861,  2863 

Weinecke  v.  State  2714 

Weitzel  v.  State  2714 

Welborn  v.  Dixon  3215 

Welcome  v.  Yosemlte,  The  3307 

Wellcome,  In  re  2906,  2908 

Welling  V.  LaBau  3224 

Wellington,  The  3360,  3363 

Wells  V.  Armstrong  3377 

V.   Houston  3199 

V.  New  England  &c.  Ins.  Co.         2758 

Welsh  V.  People  3054 

v.   State  3170 

Welvaart,  The  3341,  3335 

Wenham  v.  Switzer  31  S3 

Wenning  v.   Teeple  2865 

Wescott   V.   Arbuckle  2S.'!5 

Wesley  v.  State    3038,  3039,  3059a,  3198 

West  V.  Flaunagan  3198 

V.   State           2702,  2727,  2778.  2785, 
2991,   3041,   3141,   3142,   3143 

V.   T^ncle  Sara  3261 

Westbrook  v.  Ilarbeson  3216 

v.   State  2998 
Western  Elec.  Co.  v.  Capital  &c.  Co.  3183 

Western  Metropolis,  The  3267,  3389 

Westminster.  The  3356 

Westmorland.  The  3298 

Weston  V.   Empire  Assu.  Co.  3214 

West  of  England.  The  3285 

West    of    England    Bank    v.  Canton 

Ins.  Co.  328G 


3201,  3233, 

2784, 


2717.  2718,  2725, 
2903.  2908,  2910, 
3036,  3039,  3040, 


Wexford,  The 
Weymouth  v.  Boyer 
Whalen  v.  Commonwealth 

v.    Stephens  3224, 

Whaley  v.  Norton 

V.   Wilson 
Wharton  v.   State  3023, 

Wheat  v.  Moss 
Wheeler  v.  Alderman 

v.   State 

v.   Wadleigh 

v.   West 
Whelen  v.  Osgoodby 
Whitaker  v.  State 
White,  In  re 
White  v.  Buloid 

V.  Commonwealth 

V.  Crew 

v.   Hampton 

V.   People 

V.   Ranier.  The 

v.   Reviere 

V.   State 
2898,  2901 
3035, 

V.  Territory 

V.   White  2795, 

Whitehead  &  Iloag  Co.  v.  O'Calla- 

han 
Whitehead  v.  Perie 

V.   State 
Whitehead  &c.  Co.  v.  O'Callahan 
Whitehurst  v.  Commonwealth 
Whiteside  v.  Pullian 
\\hiting  V.  Beebe 
Whitlev  V.  Martin 
Whitlock   V.    State 
Whitney  v.  Empire  State  3271, 

V.   State  2964. 

Whittaker  v.  Amwell  Nat.  Bank 

V.   State 
Whitted  V.  Fuquay 
Whittemore  v.  Patten 
Whittock  V.  State 
Whitton  V.  Commerce,  The 

V.   State 
Whitworth  v.  Lowell 
Wick  China  Co.  v.  Brown 
Wiedeman  v.  Walpole 
Wier's  Appeal 
Wiggins  V.    People 
Wilbur  V.  Territory 
Wilburn  v.  Territory 
Wilcox  v.  State 
Wildee  v.  McKee 
Wilder  v.   Commonwealth 
Wilders  S.  S.  Co.  v.   Low 
Wilev   V.   State       2714.  3040,  3052, 
Wilhelm  Frederick,  The 
Wilhelmsberg.  The 

V.   State  2731. 

Wilkerson  v.  Commonwealth 
Wilkerson  v.  State  3026,  3029, 

Wilkes  v.  Rogers 
Wilkins  v.  Ma.v 
Wilkinson  v.  Bauerle 
Willard    v.    State 
^\■ilIenborg  v.  Murphy 
William,  The 
William  Bagaley.  The 
William  Cox.  The 
William  and  Marv.  The 
William  Harris.  The  3259, 

William  Lnshington,  The 
Williams'  Case 
Williams  v.   Benton 

v.   Clark 

V.  Commonwealth  3028,  3041. 
3129, 


3001,  3007 


3364 

3210 
3052 
3229 
3214 
3066 
3043 
3204 
3236 
3037 
3195 
3193 
3216 
3088 
3419 
3209 
3092 
3198 
3335 
2916 
3260 
3221 
2729, 
2975. 
3108 
3035 
2867 

3223 
3235 
3052 
3217 
30:!  7 
3225 
3206 
3214 
3065 
3377 
3011 
3214 
:!ii96 
.•{175 
3193 
3(t(;5 
3316 
3171 
8232 
2951 
8286 
3069 
3041 
2972 
3059 
30. -.7 
2951 
2747 
3381 
3166 
3297 
3332 
2953 
3013 
3044 
3231 
3199 
3211 
2708 
3199 
3319 
3343 
8372 
3333 
3299 
3363 
2S91 
3218 
3234 
3070. 
3166 


Ixxviii 


TABLE    OF    CASES. 


[References  are  to  Sections.'] 


Williams  v.  Fambro 
V.   liindblom 
V.   Llewellyn 
V.  Maitland 
V.   Philpot 
V.  Spitzer 
V.   Starr 
V.   State 

2863,  2874, 


2722,  3038 
323G 
3214 
3217 
3198 
3231 
3213 
2718,  2723,  2765,  2860, 
938,  2941,  2991.  2993, 


2996,  3001,  3007,  3019,  3026,  3027, 

3034,  3036,  3041,  3053,  3054,  3080, 

3082,  3093,  3094,  3099,  3108,  3111, 

3126,  3131,  3138,  3139,  3147, 

3168,  3171,  3172a 

V.  Ttiomas  3217,  3224 

V.  T'nited  States  2714 

V.  Vreeland  3217 

V.  Wager  3226 

V.  Williams  2867 

Williamson  v.   Johnson  3217 

V.   McConnell  3199 

Willis  V.  Commonwealth  3042 

V.   Henderson  3199 

V.   People  2982 

V.   State  2731,  2965,  2967,  2969,  3049 

Willmett  V.  Harmer  2863 

Wills  V.  McKinney  3193 

Wilson  V.  Cobb  3213 

V.  Commonwealth  3041a 

V.   Delarack  3216 

V.   Graham  3272 

V.  John  3401 

V.   Kinney  2197 

V.   People  2939,  2941,  2943,  3023 

V.   Phoenix  Powder  Co.  3069 

V.   Riddle  3175 

V.   State  2714,  2755,  2766,  2966,  2972, 

2987,  3001,  3014,  3025,  3033,  3035, 

3046,  3054,  3091,  3096,  3141,  3147, 

3148,  3166 

V.  Towle  3199 

V.  Union  Distilling  Co.  3218 

V.  United  States       2723,  2725,  3034, 

3044 

V.  Ward  3177 

V.  Wilson  3177 

Wlnans  v.  State  3007 

Windon  v.  Stewart  3231 

Windsor  v.  Commonwealth  3001 

V.   State  3172 

Wlnemiller  v.  State  3009 

Wineteer  v.  Simonson  3194 

Wininger  v.  State  3128 

Winn  V.  Albert  3206,  3221 

Winnebago  County  v.  Dodge  County  3218 

Winship  v.   Waterman  3229 

Winslow  V.  State    2708,  2722,  2808,  2810 


Winston  v.  Beeson 
Winter  v.  Innes 

V.   Wheeler 
Wisdom  V.  State 
Wise   V.   Withers 
Wistrand  v.   People 
Witt  V.   State 
Witters  v.    Sowles 
Wisson  V.  People 
Wolfe  V.  Pugh 
Wolflngton  V.  State 
Wolfstein  v.  People 
Wolton  V.  Gavin 
Wolverton  v.  State 
Womack  v.   State 
Womack  v.  Tankersley 
Wong  Hane,   In  re 
Wood  V.  Barrow 

V.   Hudson 

V.   Mann 

V.  Nimrod,  The 


3011 
3227 
3223 
2912 

3415,  3425 
3103 

3019,  3046 
323.-> 
3049 

2939,  2940 
3056 
3054 
3399 

2802.  2863 

3059a 

2S63 

2703,  3011 

2951 

3195 

3183,  3196,  3212 

3307 


2931, 
3099, 
3148. 
2978, 
2806, 


3373, 
3101, 


3037, 

3075. 
3166, 
2822, 


Wood  V.  People   2984,  3071,  3079, 

V.  Stane 

V.   State  2729,  2802, 

3041a,  3043,  3055, 
3145.  3146,   3147, 
Woodbury  v.  State 
Woodford  v.  People 
Woodin  V.  People 
Wooding  V.  Bradley 
Woodman  v.  Howell 
Woodrfip-Sims,  The 
Woodruff  V.  State  2916,  2969 
Woods  V.  Cottrell 

V.   People 

V.   State 

V.   Woods 
Woodson  V.  State 
Woodward  v.  State  2971, 

Woodworth  v.  State 
Woolsey  v.  State 
Wooster  v.  <^"!ark 

V.   Gumbirnner 

V.   State 
Wooten  V.  State 

V.   Wilkins 
Wope  V.  Hemenway 
Word  V.  State 
Work  V.  Leathers 

V.   McCoy 
Workman  v.  Wright 
World  V.  State 
Wormeley  v.  Commonwealth 
Wormly  v.   State 

Worth  V.   Mumford  3316, 

Wortham  v.  State 

Worth ington  and  Davis,  The  3367, 
Worthington  v.  Hiss 

V.   State 
Wren  v.   State 
Wright.  In  re 

V.   Hicks 

V.   Lindsay 

T.   Miller 

V.   People 

V.   State  2709,  2786. 

2937,  3006,  3038,  3049, 


V.  United  States 
Wroe  V.  State 
Wrottesley  v.  Blendish 
Wyatt  V.  Thompson 
Wynegar  v.  State 
Wynne  v.   State 


2795, 
3051, 
3141 
2921 


2955 


3080- 
3212 

3030. 

3140. 
3149 
2981 
2816- 
3107 
3231 
2848 
3382 
310.5 
3005 
3101 
3054 
3168 
3101 
3172 
2935- 
28(»8 
3183 
3224 
3065 
3003 
2770- 
3293 
3092 
3299 
2934 
2995 
3063: 
3037 
3058 
3317 
2999 
3368 
3234 
2770 
3009 
3424 
3095 
305(>- 
3207 
2970' 
2797. 
3052. 

,  3172- 

,  2924 
3032 
3206 
3231 

,  3049' 
3028 


Yates  V.  Houston 

V.  State 
Yarbouch   v.    State 
Yarborough  v.  State         3058,  3059. 
Yee  fJee.  In  re 
Yellowstone  Kit  v.  State 
Yeoman  v.  State 
Yoe  V.   People 
Yolo  County  v.  Sacramento 
York  V.  State 
Yost  V.  Hudiburg 
Yother  v.  State 
Young  V.  Grundy 

V.   Hopkins 

V.   People  3073,    3082, 

V.   Rothrock 

V.   State  2817.   2820.   2893, 


V.  T'nited  States 
V.  Wright 
Yourri,  The 


2895.  2942. 


2865 
3046 
2715 
3118 
2898 
3011 
3168 
2772 
3067 
3059 
3204 
3168 
3197 
3199 
3107 
3066 
2894. 
3044 
3154 
3194 
339^: 


TABLE   OF    CASES. 


Ixxix 


[References  are  to  Sections.l 


Zabriskie  v.  State 
Zeininger  v.  Schnitzler 
ZeisweiFS  v.  James 
Zimmerman  v.  State 


3142,  3146,  3152 
3213 
2880 
3066 


Zink  V.  I'eople 
Zipperian  v.   People 
Zodiac,  The 
Zoldoske  v.  State 
Zollicoffer  v.  State 


2726,  2974,  3048 

3032 

3266 

2708,  3046 

2785- 


EVIDENCE  IN  PROSECUTIONS  FOR  CRIMES. 


THE  LAW  OF  EVIDENCE, 


CHAPTEE    CXXVII. 


GENERAL   riJINCIPLES  AND  RULES. 


Sec. 

2702.  Crime — Definition  and  general 

principles. 

2703.  Statutory  crimes — Statutes  af- 

fecting evidence. 

2704.  Criminal  capacity. 

2705.  Constitutional  safeguards  and 

privileges. 

2706.  Burden   of   proof — Reasonable 

doubt. 

2707.  Reasonable  doubt. 

2708.  Corpus  delicti — Circumstantial 

evidence. 

2709.  Circumstantial        evidence  — 

Must  exclude  every  reason- 
able hypothesis  other  than 
that  of  guilt. 

2710.  Circumstantial   evidence — Ele- 

ments and  classification. 

2711.  Circumstantial         evidence  — 

Physical  or  external  objects 
and  appearances. 

2712.  Circumstantial  evidence — Con- 

duct and  relations  of  ac- 
cused. 

2713.  Circumstantial         evidence  — 

Proof  of  every  link  beyond 
reasonable  doubt. 

2714.  Substance     of     the     charge — 

Venue — Variance. 


Sec. 
2715. 
2716. 
2717. 

2718. 


2719. 
2720. 
2721. 
2722. 
2723. 

2724. 


2725. 


2726. 
2727. 
2728. 
2729. 
2730. 
2731. 

2732. 
2733. 


Identity. 

Criminal  intent. 

Criminal  intent — Direct  evi- 
dence. 

Criminal  intent — Circumstan- 
tial and  presumptive  evi- 
dence.  • 

Motive. 

Evidence  of  other  crimes. 

Character  of  accused. 

Character  of  others. 

Conduct  indicating  conscious- 
ness of  guilt. 

Conduct  indicating  conscious- 
ness of  guilt — Flight — Con- 
cealment. 

Conduct  indicating  conscious- 
ness of  guilt — Recent  posses- 
sion of  stolen  goods. 

Defenses. 

Alibi. 

Insanity. 

Intoxication. 

Former  jeopardy. 

Former  jeopardy — Burden  and 
evidence  to  sustain. 

Provinces  of  court  and  jury. 

Cautionary  instructions. 


§  2702.     Crimes — Definition  and  general  principles. — A  crime  has 
been  defined,  in  substance,  and  in  general  terms,  as  an  act  committed 

3 


§    2702.]  GENERAL    PRINCIPLES    AND    RULES.  4 

or  omitted  in  violation  of  a  public  law  either  forbidding  or  command- 
ing it,  as  the  case  may  be.^  It  is  an  offense  or  wrong,  directly  or  in- 
directly affecting  the  public,  for  which  the  law  has  prescribed  punish- 
ment and  which  is  prosecuted  by  the  sovereignty  in  its  own  name  in  a 
criminal  proceeding.-  The  term  usually  includes  misdemeanors  as 
well  as  treason  and  felonies,  and  an  attempt  to  commit  a  crime  may 
itself  be  a  criminal  misdemeanor,  although  the  crime  attempted  is  only 
a  misdemeanor.  Generally  speaking,  it  may  be  said  that  the  rules 
of  evidence,  or  at  least  the  tests  for  its  admission,  are  the  same  in 
criminal  as  in  civil  cases,^  and,  for  this  reason,  many  of  the  rules  that 
have  been  treated  in  the  first  and  second  volumes  of  this  work  are 
applicable  to  the  subject  of  this  volume  and  need  not  be  repeated. 
But  there  is  a  fundamental  difference  in  regard  to  the  burden  of 
proof  or  weight  of  evidence,  as  to  criminal  capacity  and  liability  for 
an  act  in  certain  cases  and  as  to  various  other  matters.  So,  too,  it  is 
evident  that  what  is  relevant  in  the  one  case  may  not  always  be  rele- 
vant in  the  other,  and  the  rules  are  not  altogether  the  same  in  regard 
to  evidence  of  character  and  the  like.  So,  there  are  certain  defenses 
and  certain  constitutional  safeguards  and  other  privileges  usually 
adopted  for  the  protection  of  one  accused  of  crime  or  to  secure  him 
a  fair  trial.  These  and  similar  matters  will  be  treated  in  this  chapter, 
with  a  general  survey  of  the  subject.  Some  matters,  however,  that 
relate  particularly,  or  even  exclusively,  to  criminal  proceedings,  such 
as  confessions,  dying  declarations,  and  the  like,  have  been  already 
treated  and  will  be  considered  in  this  volume  only  in  connection  with 
specific  crimes. 

M  Blackstone  Comm.  15;   Butt  v.  Burke     Works     (Bohn's     Edition), 

Conant,   1   B.  &  B.    548;    Greely   v.  489. 

Hamman,   12   Colo.   95;    Slattery  v.  ^Roscoe    begins  Ms  work  on  "Crim- 

People,  76  111.  220;  State  v.  Peterson,  inal   Evidence"  with  the   statement 

41  Vt.  511;  United  States  v.  Eaton,  that,  "the  general  rules  of  evidence 

144  U.  S.  677,  12  Sup.  Ct.  764.  are  the  same  in  criminal  and  in  civil 

-  Mann  v.  Owen,  9  B.  &  C.  595,  17  proceedings,"  and  quotes  from  Wat- 

E.  C.  L.  456;  People  v.  Williams,  24  son's  Case,  2  Starkie  N.  P.  155,  and 

Mich.  163;   1  Bishop  Cr.  Law,  §  32;  Murphy's  Case,  8  Car.  &  P.  306,  to 

"Crimes,"   says   Edmund   Burke,  in  the  same  effect;  see  also,  Lord  Mel- 

the  report  of  the  committee  appoint-  ville's  Trial,   29   How.   St.  Tr.  746; 

ed   to  inspect  the   Lords'   Journals,  Summons  v.  State,   5  Ohio  St.  325. 

"are  the  actions  of  physical  beings,  352;   Crawford  v.  State,  112  Ala.  1, 

with  an  evil  intention  abusing  their  21  So.  214;  West  v.  State,  22  N.  J.  L. 

physical  powers  against  justice,  and  212. 
to    the    detriment    of    society."     6 


5       STATUTORY  CRIMES — CRIMINAL  CAPACITY,   [§§  2703,  2704. 

§  2703.  statutory  crimes — Statutes  affecting  evidence. — In  every 
state  there  are  doubtless  many  statutory  crimes  tliat  were  unknown  to 
the  connuon  law,  and,  in  some  states,  it  has  been  held  that  there  are 
no  common-law  ojffenses  in  such  states  not  dehned  or  declared  to  be 
crimes  or  misdemeanors  by  statute,*  but  where  the  statute  uses  com- 
mon-law terms  or  does  not  particularly  define  the  crime,  the  courts 
W'ill  usually  look  to  the  common-law  definition.^  A  discussion  of  the 
power  of  the  legislature  over  the  subject  of  crimes,  and  of  numerous 
statutory  offenses,  will  be  found  in  the  note  referred  to  below."  The 
evidence  necessary  to  prove  a  statutory  offense  is,  of  course,  largely 
determined  by  the  elements  of  the  offense  as  defined  or  made  essential 
by  the  statute.  As  elsewhere  shown,  the  legislature  cannot  arbitrarily 
create  a  conclusive  presumption  of  guilt  where  none  could  reasonably 
be  inferred,'^  but  law^s  which  prescribe  the  evidential  force  of  certain 
facts  by  enacting  that  upon  proof  of  such  facts  a  given  presumption 
shall  arise,  or  which  determine  what  facts  shall  constitute  a  prima 
facie  case  against  the  accused,  casting  the  burden  of  proof  upon  him 
of  disproving  or  rebutting  the  presumption,  are  not  generally  re- 
garded as  unconstitutional,  and  such  statutes,  within  the  constitu- 
tional limits,  are  not  necessarily  invalid.^ 

§  2704.  Criminal  capacity. — In  order  that  a  person  should  be 
punished  as  the  perpetrator  of  a  crime  he  must  have  criminal  capacity. 
There  are  two  principal  classes  of  those  who  may  lack  criminal 
capacity,  namely,  infants  and  persons  of  unsound  mind,  and  there  are 
certain  cases  in  which  duress,  coercion  or  constraint  have  been  held 
to  amount  practically  to  want  of  criminal  capacity.''  So,  too,  while  volun- 

^See,  State  v.  DeWolfe,   (Neb.)  93  v.  State,  25  Ind.  App.  278,  59  N.  E. 

N.  W.  746;  Estes  v.  Carter,  10  Iowa  489. 

400;  Smith  v.  State,  12  Ohio  St.  466,  "Booth  v.   People,   186   111.   43,  78 

80  Am.  Dec    355;   Allen  v.  State,  10  Am.  St.  235-274,  note. 

Ohio  St.  287;  Stephens  v.  State,  107  'See,  Vol.  I.  §  87. 

Ind.  185,  8  N.  E.  94;  Rosenbaum  v.  «Vol.   I,   §   86;    see  also.   State  v. 

State,  4  Ind.  599;  State  v.  Williams,  Kyle,    14    Wash.    550,    45    Pac.    147; 

7  Rob.  (La.)  252.  Commonwealth  v.  Smith,  166  Mass. 

=*  State  V.  Berdetta,  73  Ind.  185,  38  370,  44  N.  E.   503;    State  v.  Beach, 

Am.  R.  117;  Hedderich  v.  State,  101  147  Ind.  74,  46  N.  E.  145,  36  L.  R.  A. 

Ind.  564;  State  v.  De  Wolfe,  (Neb.)  179;  Wong  Hane,  In  re,  108  Cal.  680, 

93  N.  W.  746;   Mitchell  v.  State,  42  41  Pac.  693;   People  v.  Cannon,  139 

Ohio  St.  385.    But  the  statute  must  N.  Y.  32,  34  N.  E.  759,  36  Am.  St. 

not  be  so  indefinite  that  the  court  668,  and  note, 

cannot  tell  what  was  intended.  Cook  "  See,  State  v.  Baker,  110  Mo.  7,  19 


§    2705.]  GENERAL    PRINCIPLES    AND   RULES.  6 

tary  drunkenness  is  no  excuse,  or  at  least  no  justification,  for  many 
acts,  yet  intoxication  may  operate  or  tend  to  operate  to  take  away 
criminal  capacity,  especially  where  a  deliberate  intent  is  required  in 
the  mind  of  the  party  at  the  time  of  his  act  as  an  essential  element  of 
the  crime.  But  one  may  be  an  infant  over  a  certain  age,  or  of  un- 
sound mind  in  some  respect,  or  more  or  less  intoxicated  or  the  like, 
and  still  have  criminal  capacity.  \Vliether  he  has  or  not  will  de- 
pend largely  upon  the  character  or  degree  of  his  infirmity,  or  the 
like,  and  upon  the  nature  of  the  alleged  crime.  The  presumptions 
that  have  been  adopted  in  the  case  of  infants,  as  to  criminal  capacity, 
have  been  considered  elsewhere,^*'  and  insanity  and  drunkenness  will  be 
considered  when  we  come  to  treat  defenses. 

§  2705.     Constitutional  safeguards  and  privileges. — It  is  an  old 

maxim  of  the  law  that  no  one  is  bound  to  criminate  himself,  and 
while  this  may  have  been  originally  "a  mere  rule  of  evidence,"  it  is 
now  embodied  in  tlie  constitutions  of  the  different  states  and  in  the 
constitution  of  the  United  States  as  well.  Other  safeguards  and 
privileges  are  also  provided,  among  which  are  security  against  un- 
lawful and  unreasonable  searches  and  seizures,  the  right  to  trial  by 
jury,  security  against  being  put  twice  in  jeopardy  for  the  same 
offense,  and  the  right  of  an  accused  to  be  confronted  by  the  witnesses 
against  him.  These  matters,  however,  have  nearly  all  been  fully  treat- 
ed,^ ^  except  the  provision  as  to  jeopardy,  which  will  be  considered  in 
another  section.  Under  most,  if  not  all,  of  the  modern  statutes  the  ac- 
cused may  become  a  witness  if  he  so  desires,  but  he  is  not  oljliged  to, 
and  if  he  does  he  is,  in  general,  subject  to  cross-examination  and  im- 
peachment the  same  as  any  other  witness,  so  long  as  his  constitutional 
rights  or  privileges,  not  in  some  way  expressly  waived  by  him,  are  not 
invaded. ^^     Many  of  the  statutes  also  provide  that  the  accused  may 

S.  W.  222,  224,  225,  and  cases  cited;  '"See,  Vol.  I,  §§  80,  125,  also  chap- 
Commonwealth  v.  Flaherty,  140  ter  on  Infancy,  Vol.  Ill,  ch.  108. 
Mass.  454,  5  N.  E.  258;  State  v.  "That  a  witness  cannot  be  com- 
Davis,  15  Ohio  72;  Goldstein  v.  Peo-  pelled  to  criminate  himself,  see,  Vol. 
pie,  82  N.  Y.  231,  as  to  the  presump-  II.  §§  1001-1012;  as  to  unlawful 
tion  in  case  of  husband  and  wife;  searches  and  seizures,  criminating 
see  also.  Commonwealth  v.  Daley,  148  documents  and  corporal  inspection, 
Mass.  12,  18  N.  E.  579;  State  v.  Per-  see,  Vol.  II,  §§  1013,  1014;  as  to  the 
tig,  98  Iowa  139,  67  N.  W.  87;  1  Hale  right  to  confront  the  witness,  see, 
P.  C.  50,  51;  1  Russell  Crimes  18,  22;  Vol.  II,  §  1195. 

as  to  hypnotism,  see.  People  v.  Wor-  '=  Vol.    II,    §    988;    also,   Hanoff  v. 

thington,  105  Cal.  166,  38  Pac.  689.  State,   37  Ohio   St.   178;    Stalcup  v. 


BURDEX    OF    PROOF. 


[§    270G. 


take  and  read  depositions  of  witnesses  residing  out  of  the  state,  or  the 
Hke,  if  he  waived  his  right  to  he  confronted  by  the  witnesses  and 
consents  in  the  manner  provided  by  the  statute  to  the  taking  and 
reading  of  depositions  of  witnesses  by  the  state  upon  the  same  matter. 
Such  statutes  are  not  unconstitutional,  and,  if  he  so  consents  and 
waives  his  privilege,  depositions  may  he  so  taken  and  read,  in  a  proper 
case,  by  the  prosecution.^^ 

§  2706.  Burden  of  proof — Reasonable  doubt. — The  presumption  is 
in  favor  of  innocence,'*  and  lor  this  reason,  even  if  there  were  no 
other,  the  burden  of  proof  would  ordinarily  be  upon  the  prosecution. 
But,  for  other  good  reasons,  it  is  settled  by  the  criminal  law  that  the 
burden  is  upon  the  prosecution  to  prove  the  guilt  of  the  accused,  not 
merely  by  a  preponderance  of  the  evidence,  but  beyond  a  reasonable 
doubt.^^  As  stated  in  another  volume,  and  as  will  be  shown  here- 
after in  considering  particular  defenses  and  classes  of  crimes,  the 
better  rule  is  that  the  burden  remains  tliroughout  the  trial  upon  the 


State,  146  Ind.  270,  45  N.  E.  334; 
State  v.  Harvey,  131  Mo.  339,  32  S. 
W.  1110;  People  v.  Foo.  112  Cal.  17, 
44  Pac.  453;  State  v.  Kirkpatrick,  63 
Iowa  554,  19  N.  W.  660;  State  v.  Mc- 
Guire,  15  It.  I.  23;  Peck  v.  State,  86 
Tenn.  259,  6  S.  W.  389. 

"Butler  V.  State,  97  Ind.  373;  Vol. 
II,  §  1195;  see  also,  as  to  the  use  of 
evidence  taken  at  a  preliminary 
hearing,  and  also  as  to  waiver  of  the 
constitutional  privilege.  State  v. 
Nelson,  68  Kans.  566,  75  Pac.  505; 
Davis  V.  Commonwealth,  (Ky.)  77 
S.  W.  1101;  State  v.  Banks,  111  La. 
Ann.  22,  35  So.  370;  People  v.  Welsh, 
88  App.  Div.  (N.  Y.)  65,  84  N.  Y.  S. 
703;  State  v.  Gushing,  17  Wash.  544, 
50  Pac.  512 ;  Mattox  v.  United  States, 
156  U.  S.  237,  15  Sup.  Ct.  337;  State 
V.  Minard,  96  Iowa  267,  65  N.  W. 
147;  State  v.  Bowker,  26  Ore.  309,  38 
Pac.  124;  see  also,  Cooley  Const. 
Lim.  (6th  ed.)  387. 

"Vol.  I,  §§;  94,  95;  Ogletree  v. 
State,  28  Ala.  693 ;  People  v.  Graney, 
91  Mich.  646,  52  N.  W.  66;  Farley  v. 


State,  127  Ind.  419,  26  N.  E.  898; 
Williams  v.  State.  35  Tex.  Cr.  App. 
606,  34  S.  W.  943;  State  v.  Krug,  12 
Wash.  288,  41  Pac.  126. 

"  Prince  v.  State,  100  Ala.  144,  14 
So.  409,  46  Am.  St.  28;  Green  v. 
State,  38  Ark.  304;  People  v.  Woody. 
45  Cal.  289;  Boykin  v.  People,  22 
Colo.  496,  45  Pac.  419;  Wallace  v. 
State,  41  Fla.  547,  26  So.  713;  Watt 
V.  People,  126  111.  9,  18  N.  E.  340; 
Guetig  V.  State,  63  Ind.  278;  State  v. 
Trout,  74  Iowa  546,  38  N.  W.  405,  7 
Am.  St.  499;  People  v.  Beckwith, 
108  N.  Y.  67,  15  N.  E.  53;  State  v. 
Taylor,  57  S.  Car.  483,  35  S.  E.  729, 
76  Am.  St.  575;  Pilkinton  v.  State, 
19  Tex.  214;  State  v.  Meyer,  58  Vt. 
457,  3  Atl.  195;  Tilley  v.  Common- 
wealth, 90  Va.  99,  17  S.  E.  895;  1 
Starkie  Ev.  478;  1  Hale  P.  C.  300; 
Plake  V.  State,  121  Ind.  433,  23  N.  E. 
273,  16  Am.  St.  410,  note;  23  Am. 
St.  688,  note;  25  Am.  St.  21,  note, 
and  numerous  authorities  herein- 
after cited. 


§    2706.]  GENERAL   PRINCIPLES   AND   RULES.  8 

prosecution  to  satisfy  the  jury  of  the  guilt  of  the  accused  beyond  a 
reasonable  doubt/''  But  when  the  defendant  pleads  any  substantive, 
distinct  and  independent  matter  as  a  defense,  which  upon  its  face 
does  not  necessarily  constitute  an  element  of  the  transaction  with 
which  he  is  charged,  it  has  been  said  that  the  burden  of  prov- 
ing such  defense  devolves  upon  him.^^  The  accused,  to  make 
such  matter  available  as  a  defense,  must  usually  introduce  evi- 
dence to  prove  the  independent  exculpatory  facts  upon  which 
he  relies,  and  in  this  respect  and  to  this  extent  it  is,  perhaps, 
correct  to  say,  in  one  sense  at  least,  that  the  burden  is  on  him.  But, 
notwithstanding  this,  if,  after  all  the  evidence  is  in,  it  is  found  that 
upon  the  whole  case  the  prosecution  has  not  sustained  the  burden  of 
proof  of  satisfying  or  convincing  the  jury  of  his  guilt  beyond  a  rea- 
sonable doubt,  he  should  be  acquitted.  It  has  also  been  said  that  if  the 
non-existence  of  some  fact,  or  the  non-performance  of  some  duty,  is 
a  constituent  and  essential  element  in  the  crime  with  which  he  is 
charged,  the  burden  of  proving  this  negative  allegation  of  non-exist- 
ence or  non-performance  is  upon  the  state.  But  if  a  fact  is  peculiarly 
within  the  knowledge  of  the  accused,  as,  for  example,  his  own  age 
when  he  pleads  non-age  as  a  defense,  or  the  fact  that  he  has  a  license  to 
carry  on  a  prohibited  business  or  to  do  a  forbidden  act,  the  burden  of 
proof  is  said  to  be  on  him,  as  he  has  much  better  means  of  proving  the 
fact  alleged  than  the  prosecution  has  of  proving  the  contrary.  Tlie 
matter  is  peculiarly  within  his  knowledge,  and  to  require  the  state  to 
prove  the  lack  of  a  license  is  to  require  proof  of  a  negative  allega- 
tion.^* But  even  where  this  is  true  the  jury  should  still  acquit  if  there 
is  a  reasonable  doubt,  upon  the  whole  evidence,  of  the  defendant's 
guilt. 

^^  See,  Vol.  I,  §§  95,  126;  for  a  pres-  Ellis  v.  State,  30  Tex.  App.  601,  18 

entatlon  of  the  opposite  view,  see,  S.  W.   139;    State  v.   McCaffrey,   69 

Wnarton  Cr.  Ev.,  §  322;   "The  onus  Vt.  85,  37  Atl.  234;   Sharp  v.  State, 

of  proving  every  thing  essential  to  17  Ga.  290;   Commonwealth  v.  Zelt, 

the     establishment    of    the    charge  138  Pa.  St.  615,  21  Atl.  7;   State  v. 

against  the  accused,"  says  Mr.  Bur-  Crow,   53   Kans.   662,   37   Pac.    170; 

rill,  "lies  on  the  prosecutor."    Bur-  State  v.  Keggon,  55  N.  H.  19;   Peo- 

rill  Circ.  Ev.  728.  pie  v.  Townsey,  5  Denio  (N.  Y.)  70; 

"See,  Commonwealth  v.  McKee,  1  People  v.  Maxwell,  83  Hun   (N.  Y.) 

Gray  (Mass.)  61;  Underhill  Cr.  Ev.,  157,  31  N.  Y.  S.  564;  State  v.  Kriech- 

§  23.  baum,   81   Iowa  633,  47  N.  W.  872; 

"Underhill  Cr.  Ev.,  §  24;  see  also,  Black  Intox.  Liq.,  §  507. 


9 


REASONABLE  DOUBT. 


[§  2707, 


^  2707.     Reasonable  doubt. — The  term  "reasonable  doubt"  is  well 

understood,  but  not  easily  defined,  and  it  has  been  suggested  that 
the  words  themselves  probable  convey  their  meaning  to  tlie  mind  of 
the  ordinary  juror  as  well  as  any  definition  that  could  be  given. ^'^ 
In  a  number  of  cases  it  has  been  defined  as  a  doubt  that  "the  jury  are 
able  to  give  a  reason  for"  or  "for  wliich  a  good  reason  can  be  given," 
but  this  adds  little  to  tlie  understanding  of  the  sul)ject  and  lias  been 
criticised  as  calculated  to  mislead.-''  It  is  generally  agreed  that  such 
a  doubt  must  be  an  actual  and  substantial  doubt  growing  out  of  the 
evidence,  and  not  a  mere  vague  apprehension  or  merely  possible, 
captious,  speculative  or  imaginary  doubt,- ^  but  the  two  phrases  'Tae- 
yond  a  reasonable  doubt"  and  "to  a  moral  certainty"  are  usually  re- 
garded as  practically  synonymous.^^  The  question  as  to  whether  each 
fact,  especially  where  the  evidence  is  circumstantial,  must  be  proved 
beyond  a  reasonable  doubt,  and  the  distinction  between  links  in  the 
chain  and  mere  subsidiary  facts  or  items  will  be  considered  in  a  sub- 
sequent section. ^^ 


"Wall  V.  State,  51  Ind.  453,  465; 
Siberry  v.  State,  133  Ind.  677,  33  N. 
E.  681;  State  v.  Reed,  62  Me.  129, 
142;  see  also,  Dunbar  v.  United 
States,  156  U.  S.  185,  15  Sup.  Ct. 
325;  State  v.  Morey,  25  Ore.  241,  35 
Pac.  655,  36  Pac.  573;  48  Am.  St. 
566,  note. 

-"Conflicting  authorities  as  to 
whether  such  an  instruction  should 
be  given  to  the  jury  are  reviewed 
in  the  note  in  48  Am.  St.  566,  574, 
575. 

"  Fowler  v.  State,  100  Ala.  96,  14 
So.  860;  Hornsby  v.  State,  94  Ala. 
55,  10  So.  522;  McGuire  v.  People, 
44  Mich.  286,  6  N.  W.  669,  38  Am. 
R.  265,  and  note;  People  v.  Cox,  70 
Mich.  247,  38  N.  W.  235;  Earll  v. 
People,  73  111.  329;  State  v.  Rounds. 
76  Me.  123;  State  v.  Turner,  110  Mo. 
196,  19  S.  W.  645;  Lovett  v.  State, 
30  Pla.  142,  11  So.  550;  United 
States  v.  Cassidy,  67  Fed.  698; 
State  V.  Roberts,  15  Ore.  187.  13 
Pac.  896;   People  v.  Guidici,  100  N. 


Y.  503,  3  N.  E.  493;  many  examples 
of  instructions  held  proper  and  of 
others  held  improper  are  given  in 
the  note  to  Burt  v.  State,  72  Miss. 
408,  16  So.  342,  48  Am.  St.  563,  566, 
570-578;  see  also,  for  a  review  of 
many  cases  and  statements  therein 
as  to  what  is  or  is  not  a  reasonable 
doubt,  Lovett  v.  State,  30  Fla.  142, 
11  So.  550,  17  L.  R.  A.  705-711. 

"Jones  v.  State,  100  Ala.  88,  14 
So.  772;  Commonwealth  v.  Costley, 
118  Mass.  1;  Carlton  v.  People,  150 
111.  181,  37  N.  E.  244,  41  Am.  St. 
346;  State  v.  Whitson,  111  N.  Car. 
693,  16  S.  E.  332. 

"  See,  however,  upon  that  subject, 
Wade  v.  State,  71  Ind.  535;  Carlton 
v.  People,  150  111.  181,  37  N.  E.  244, 
41  Am.  St.  346;  Siebert  v.  People, 
143  111.  571,  32  N.  E.  431;  Fowler  v. 
State,  100  Ala.  96,  14  So.  860,  with 
which  compare.  Graves  v.  People,  18 
Colo.  170,  32  Pac.  63;  People  v.  Ah 
Chung,  54  Cal.  398;  State  v.  Crane, 
110  N.  Car.  530,  15  S.  E.  231. 


§    2?0S.]  GENERAL    TRINCIPLES    AXD    RULES.  10 

§  2708.  Corpus  delicti — Circumstantial  evidence. — The  proof  of 
the  charge  in  prosecutions  for  crimes  involves  the  proof  of  two  dis- 
tinct matters:  First,  that  the  act  itself  was  done;  and,  secondly, 
that  it  was  done  by  the  person  charged,  in  other  words,  proof  of  the 
corpus  delicti,  or  body  of  the  crime,  and  proof  of  the  identity  of  the 
accused.-*  It  is  seldom  that  either  of  these  can  be  proved  by  direct 
testimony,  and  either  may  be  established  in  a  proper  case,  by  cir- 
cumstantial evidence.  Even  in  the  case  of  homicide,  though  ordi- 
narily there  ought  to  be  the  testimony  of  persons  who  have  seen  and 
ivlentified  the  body,  yet  this  is  not  absolutely  necessary  in  cases  where 
tlie  proof  of  the  death  is  so  strong  as  to  produce  tlie  full  assurance  of 
]noral  certainty,-^  or,  in  other  words,  to  satisfy  the  jury  beyond  a  rea- 
sonable doubt. ^*'  The  corpus  delicti  of  homicide  must,  however,  be 
proved,  as  a  rule,  either  by  showing  that  the  party  alleged  to  have 
l)een  killed  is  actually  dead,  by  finding  and  identifying  his  corpse,  or 
by  showing  that  the  murder  was  accomplished  or  accompanied  by  the 
employment  of  violence;  or  the  like,  in  such  a  manner  as  to  suf- 
ficiently account  for  the  disappearance  of  the  body  and  render  direct 
evidence  of  its  whereabouts  or  appearance  impossible  to  be  obtained.-^ 
In  regular  order,  evidence  of  the  corpus  delicti  should  properly  precede 
evidence  tending  to  implicate  the  defendant  in  its  commission,  and 

=*Winslow  V.  State,  76  Ala.  47;  ="  State  v.  Williams,  7  Jones  L. 
Smith  v.  State,  133  Ala.  145,  31  So.  (N.  Car.)  446;  McCulloch  v.  State, 
806,  91  Am.  St.  21,  and  note;  Wil-  48  Ind.  109;  United  States  v.  Wil- 
lard  V.  State,  27  Tex.  App.  386,  11  liams,  1  Cliff.  (U.  S.)  5,  21;  see 
S.  W.  453,  11  Am.  St.  197.  "A  cor-  also,  Zoldoske  v.  State,  82  Wis.  580, 
pus  delicti  may  be  considered  as  al-  52  N.  W.  778;  Anderson  v.  State, 
ways  made  up  of  two  constituent  20  Fla.  381;  Johnson  v.  Common- 
parts;  first,  certain  general  facts,  wealth,  81  Ky.  325;  State  v.  Keeler, 
forming  its  basis,  exclusive  of  crimi-  28  Iowa  551;  State  v.  Dineen,  10 
native  indications  of  any  kind;   as,  Minn.  407. 

in  a  case  of  alleged  homicide,  the  -"  Underbill    Cr.    Ev.,    §    7,   citing, 

fact  of  death    (involving  the  physi-  Smith  v.  Commonwealth,  21  Graft, 

eal  fact  of  the  existence  of  a  dead  (Va.)    809,    820;    Pitts   v.   State,   43 

body,    and    its    identification,    when  Miss.  472,  481;    State  v.  Keeler,   28 

possible);      and     secondly,     certain  Iowa  551,  553;    Lancaster  v.   State, 

other   facts    showing   the   existence  91  Tenn.  267,  18  S.  W.  777;   Ruloff 

of  a  criminal  agency  as  the  cause  v.   People,   18   N.   Y.   179;    State  v. 

of   the    former."    Burrill    Circ.    Ev.  Winner,  17  Kans.  298;  State  v.  Dick- 

677.  son,  78  Mo.  438;   State  v.  Davidson, 

==  Wills    Circ.    Ev.    157,    162;    Rex  30  Vt.  377,  386. 
V.   Hindmarsh,   2  Leach   C.   C.    651; 
People  v.  Alviso,  55  Cal.  230. 


11  CIRCUMSTAXTIAL    EVIDENCE.  [§    2  709. 

while  the  court  may,  in  its  discretion,  vary  the  order  in  which  the  evi- 
dence is  introduced,  evidence  must  be  given  establishing  the  corpus 
delicti  beyond  a  reasonable  doubt,  or  a  judgment  of  conviction  will  not 
be  sustained  by  the  evidence.^^  It  seems  to  have  been  held  at  one 
time  that  the  corpus  delicti,  at  least  in  cases  of  homicide,  must  be 
proved  by  direct  evidence;^"  but  the  modern  rule,  as  already  stated, 
is  that  in  any  proper  case  it,  as  well  as  other  facts,  may  be  proved  by 
circumstantial  evidence  satisfying  the  jury  beyond  a  reasonable 
doubt.30 

^  2709.  Circumstantial  evidence — Must  exclude  every  reasonable 
hypothesis  other  than  that  of  guilt. — It  is  laid  down  as  a  general 
rule  by  Mr.  Burrill  that  "the  hypothesis  of  delinquency  or  guilt  should 
flow  naturally  from  the  facts  proved,  and  be  consistent  with  them 
all."^^  It  certainly  cannot  be,  however,  that  the  hypothesis  of  guilt 
must  be  consistent  with  each  and  every  minor  fact  of  which  there 
is  some  evidence,  and  the  statement  quoted  was  certainly  not  intended 
to  have  any  such  meaning.  But  the  established  rule  may,  in  other 
respects,  be  stated  in  even  stronger  terms.  There  is  some  difference 
in  the  phrasing  of  the  rule  by  the  various  courts,  but  it  is  settled  in 
substance,  with  little  dissent,  that,  in  order  to  justify  a  conviction  on 
circumstantial  evidence  it  should  not  only  be  consistent  with  tlie  in- 
ference of  guilt,  but  also  be  incompatible  or  inconsistent  witli  any 
other  reasonable  hypothesis.^-     Indeed,  it  is  sometimes  said  that  the 

-' Traylor  V.  State,  101  Ind.  65.  Houst.    (Del.)    564,    571;    Echols   v. 

^'See,    Hale    P.    C.    290;    Reg.    v.  State,  81  Ga.  696,  699,  8  S.  E.  443; 

Burdett,  4  B.  &  Aid.  95.  Green  v.   State,   51   Ark.  189,   10   S. 

•"Willard  v.   State,   27   Tex.   App.  W.    266;    James   v.    State,    45    Miss. 

386,  11   S.  W.  453,  11  Am.  St.  197,  572,  575;    State  v.  Asbell,  57  Kans. 

and  note;   People  v.  Palmer,  109  N.  398,   46   Pac.   770;    People  v.   Ward, 

Y.  110,  16  N.  E.  529,  4  Am.  St.  423,  105  Cal.  335,  38  Pac.  945;   People  v. 

and  note;   State  v.  Cardelli,  19  Nev.  Shuler,  28  Cal.  490,  496;   Wright  v. 

319,    10   Pac.    433;    Smith    v.    State,  State,   21   Neb.   496,   32   N.   W.   576; 

133  Ala.  145,  31  So.  806,  91  Am.  St.  People  v.   Aiken,    66   Mich.   460,    33 

21,  and  note;    Campbell  v.   People,  N.  W.  821;   Wantland  v.  State,  145 

159  111.  9,  42  N.  E.  123,  50  Am.  St.  Ind.  38.  43  N.  E.  931;    Cavender  v. 

134;  78  Am.  Dec.  252-259,  note.  State,  126  Ind.  47,  48.  25  N.  E.  875; 

^'Burrill  Circ.  Ev.  735.  Sumner  v.    State,   5   Blackf.    (Ind.) 

"State  V.  Levy,    (Idaho)    75  Pac.  579,  36  Am.  Dec.  561;  United  States 

227;    Sherrill   v.    State,   138   Ala.   3,  v.  Reder,  69  Fed.  965;   Hamilton  v. 

35  So.  129;   State  v.  Terrio.  98  Me.  State.    96    Ga.    301.    22    S.    E.    528; 

17,   56   Atl.   217;    State  v.    .Tohnson,  Smith  v.  State,  35  Tex.  Cr.  App.  61S, 

19    Iowa    230;     State    v.    Miller,    9  33  S.  W.  339,  34  S.  W.  960;    Webb 


§    2710.]  GENERAL    PIUNCIPLES    AXD   RULES.  12 

evidence  must  show  the  defendant's  guilt,  or  exclude  every  other  rea- 
sonable hypothesis  to  a  moral  certainty/^  but  it  seems  to  us  that  this 
form  of  statement  is  apt  to  mislead,  and  it  is  not,  of  course,  required 
that  it  should  be  shown  that  it  was  absolutely  impossible  that  another 
might  have  been  the  perpetrator  of  the  crime.  ^*  The  general  rule 
upon  the  subject  is  thus  stated  in  a  recent  case :  "In  attempting  to 
prove  a  fact  by  circumstantial  evidence  there  are  certain  rules  to 
be  observed  that  reason  and  experience  have  found  essential  to  the 
discovery  of  truth  and  the  protection  of  innocence.  The  circum- 
stances themselves  must  be  established  by  direct  proof  and  not  left 
to  rest  upon  inferences.  The  inference  which  is  to  be  based  upon  the 
facts  and  circumstances  so  proved  must  be  a  clear  and  strong  logical 
inference,  an  open  and  visible  connection  between  the  facts  found 
and  the  proposition  to  be  proved.  When  a  criminal  charge  is  sought 
to  be  sustained  wholly  by  circumstantial  evidence,  the  hypothesis  of 
guilt  or  delinquency  should  flow  naturally  from  the  facts  and  cir- 
cumstances proved  and  be  consistent  with  them  all.  The  evidence  of 
facts  and  circumstances  must  be  such  as  to  exclude,  to  a  moral  cer- 
tainty, every  hypothesis  but  that  of  guilt  of  the  offense  imputed,  or, 
in  other  words,  the  facts  and  circumstances  must  not  only  all  be  con- 
sistent with  and  point  to  the  guilt  of  the  accused,  but  they  must  be 
inconsistent  with  his  innocence."^^ 

§  2710.     Circumstantial  evidence — Elements  and  classification. — It 

is  almost  impossible  to  enumerate  or  classify  all  the  elements  of  cir- 
cumstantial evidence,  or  the  facts  and  circumstances  that  may  be  re- 

V.   State,  73  Miss.  456,  19  So.   238;  State,   26   Fla.   61,   7   So.   367;    Lan- 

Baldez   v.    State,   37    Tex.   Cr.    App.  caster  v.  State,  91  Tenn.  267,  18  S. 

413,  35  S.  W.  664;  Morgan  v.  State,  W.  777.    Or  as  it  is  sometimes  said, 

51  Neb.  672,  71  N.  W.  788;   State  v.  it  must  exclude  every  other  reason- 

Avery,   113   Mo.   475,  495,   21   S.   W.  able  hypothesis  than  that  of  the  de- 

193;    State   v.    Miller,   100   Mo.    606,  fendant's    guilt. 

626,   13   S.  W.   832,  1051;    Common-         ^^  See,  Burrill  Circ.  Ev.  737;  Jones 

wealth  v.  Goodwin,  14  Gray  (Mass.)  v.    State,   100    Ala.    88,    14    So.    772; 

55;   Chitister  v.  State,  33   Tex.  Cr.  see  also,  Commonwealth  v.  Webster, 

App.   635,   638,  28  S.   W.  683;    Ken-  5   Cush.    (Mass.)    295,   52   Am.   Dec. 

nedy  v.   State,   31   Fla.   428,   12   So.  711,  and  note. 

858;  State  v.  Davenport,  38  S.  Car.  =*Findley  v.  State,  5  Blackf. 
348,  352,  17  S.  E.  37;  Carlton  v.  (Ind.)  576,  36  Am.  Dec.  557;  Sum- 
People,  150  111.  181,  37  N.  E.  244;  ner  v.  State,  5  Blackf.  (Ind.)  579, 
Gannon  v.  People,  127  111.  507,  521,  36  Am.  Dec.  561. 
21  N.  E.  525;  Commonwealth  v.  =^  People  v.  Fitzgerald,  156  N.  Y. 
Costley,    118    Mass.    1;    Coleman   v.  253,  258,  50  N.  E.  846. 


13  CIRCUMSTANTIAL    EVIDENCE.  [§    2711. 

ceived  as  evidence  of  guilt  or  in  exculpation.  "In  truth,"  says  Burke, 
"it  seems  a  wild  attempt  to  lay  down  any  rule  for  the  proof  of  inten- 
tion by  circumstantial  evidence;  all  the  acts  of  the  party;  all  things 
that  explain  or  throw  light  on  these  acts;  all  the  acts  of  others  relative 
to  the  affair  that  come  to  his  knowledge  and  may  influence  him;  his 
friendships  and  enmities;  his  promises;  his  threats;  the  truth  of  his 
discourses ;  the  falsehood  of  his  apologies,  pretenses  and  explanations ; 
his  books ;  his  speech ;  his  silence  where  he  was  called  to  speak ;  every- 
thing which  tends  to  establish  the  connection  between  all  these  par- 
ticulars; every  circumstance,  precedent,  concomitant  and  subsequent, 
become  parts  of  circumstantial  evidence.  These  are  in  their  nature 
infinite,  and  cannot  be  comprehended  within  any  rule,  or  brought 
under  any  classification."^"  Mr.  Burrill,  however,  has  classified  them 
as  follows:  "I.  Criminative  or  exculpatory  evidence,  as  derived: 
(1)  From  physical  or  external  objects  or  appearances;  (2)  from  the 
conduct  or  position  of  the  accused  himself;  (a)  before  the  commission 
of  the  supposed  crime;  (b)  at  or  about  the  time  of  its  commission;  (c) 
afterwards.  II.  Exculpatory  evidence  or  considerations,  as  derived: 
(1)  from  the  exculpatory  evidence  adduced;  (2)  from  new  and  dis- 
tinct evidence."^'  A  brief  explanation  of  these  matters  will  be  given 
in  the  sections  immediately  following  and  the  most  important  will  be 
more  fully  treated  in  subsequent  sections. 

§  2711.  Circumstantial  evidence — Physical  or  external  objects  and 
appearances. — The  physical  or  external  objects  and  appearances  are 
such  as  the  person  killed,  the  building  burned  or  other  subject  of  the 
offense,  its  appearances  and  various  marks,  the  instruments  of  the  of- 
fense and  their  appearances,  the  place  and  its  appearances,  sounds, 
smells  and  the  like,  symptoms  of  poison,  objects  of  dress,  and  the 
like  found  at  the  place,  of  the  crime,  fruits  of  the  offense,  and  the  like, 
(a)  Some  of  these  physical  facts  and  appearances  go  merely  to  show 
the  corpus  delicti ,  or  to  show  whether  a  crime  has  been  committed,  (b) 
Others  go  to  indicate  the  particular  perpetrator,  or  to  prove  that  the 
accused  was  concerned  in  the  crime,  as  principal  or  accessory.  "A 
corpus  delicti  is  shown  by  such  facts  as  indicate  a  distinct  criminal 
liuman  agency ;  or,  in  other  words,  by  those  facts  which  go  to  negative 
the  supposition  or  hypothesis  that  the  appearances  observed  could  have 
been  the  result  of  natural  causes,  or  of  accident,  or  of  the  act  of  the 

'■'6    Burke    Work     (Bohn's    ed.).        "Burrill  Circ.  Ev.  251. 
489. 


§    2712.]  GENERAL   PRINCIPLES    AND   RULES.  14 

party  injured  or  slain,  or  of  any  irresponsible  agency.  In  cases  of 
alleged  murder,  the  most  important  facts  for  this  purpose  are  the  ap- 
pearances presented  by  the  body,  when  found — its  condition,  whether 
buried  or  otherwise  concealed,  stripped  of  clothing,  or  otherwise — its 
position  and  attitude — the  marks  of  violence  upon  it ;  if  wounds,  their 
nature,  number  and  direction — tlie  particular  appearance  of  bodies 
r  found  in  the  water,  or  suspended  by  the  neck,  and  the  like.  In  many 
cases  the  opinions  of  medical  men,  based  upon  actual  inspection  and 
examination,  are  necessarily  sought  for  and  relied  on.  In  cases  of 
alleged  poisoning,  these  professional  examinations  become  of  peculiar 
importance,  involving  the  dissection  of  the  body,  to  a  greater  or  less 
extent,  and  the  application  of  chemical  or  other  tests,  for  the  purpose- 
of  detecting  the  presence  of  poison  in  it.  Other  facts  which  go  to 
show  that  a  crime  has  been  committed,  are,  in  cases  of  murder,  rape 
and  robbery,  the  presence  of  footmarks,  other  than  those  of  the  de- 
ceased or  assaulted  person,  at  the  scene  of  the  crime ;  marks  of  strug- 
gles or  resistance  to  violence ;  stains  of  blood  in  the  vicinity ;  cries  of 
distress ;  sounds  as  of  falling  bodies ;  the  clothing  of  the  deceased  or 
assaulted  person,  disordered,  torn,  stripped  off  or  scattered  about ; 
pockets  rifled  of  their  contents,  and  the  like.  The  participation  of  the 
accused  in  the  crime  proved  to  have  been  committed  is  shown  by 
those  physical  facts  or  appearances  which  connect  him  with  it; 
affording  so  many  natural  coincidences,  harmonizing  with  the  sup- 
position of  his  guilt.  They  are,  in  other  words,  the  traces,  marks  or 
indications,  more  or  less  distinct  and  impressive,  of  the  presence  of 
a  particular  criminal  agent ;  and  they  may  be  considered  under  two 
principal  divisions ;  first,  traces  or  indications  at  the  scene  of  the 
crime,  derived  or  supposed  to  be  derived  from  his  person;  and 
secondly,  traces  or  indications  upon  or  near  his  person,  derived  or 
supposed  to  be  derived  from  participation  in  the  crime."^® 

^  2712.  Circumstantial  evidence — Conduct  and  relations  of  ac- 
cused.— The  criminative  or  exculpatory  circumstantial  evidence  de- 
rived from  the  relations,  position  and  conduct  of  the  accused  party 
himself  may  be,  as  suggested  by  Burke,  either  precedent,  concomitant 
or  subsequent.^'^  "In  tracing  the  connection  between  a  crime  and  the 
person  suspected  or  accused  of  it,  as  indicated  by  his  previous  conduct 
and  position,"  says  Burrill,  "the  circumstances  to  be  inquired  into 

='Burrill  Circ.  Ev.  262.  '"See     also,     Rex     v.     Donnellan. 

Wills  Cr.  Ev.,  30,  85,  241. 


15  CIRCUMSTANTIAL   EVIDEXCE,  [§    2713. 

naturally  occur  in  the  following  order:  First,  his  character,  as  gen- 
erally disposing  or  inclining  liim  to  the  offense.  Secondly,  the  par- 
ticulars of  liis  external  situation  and  relation,  as  more  immediately 
instigating  him  to  its  commission;  or,  in  other  words,  as  presenting 
motives  to  the  offense,  including  also  the  contemplating  of  the 
necessary  means  of  committing  it.  Thirdly,  language  indicative 
of  existing  disposition,  or  design;  comprising  remote  allusions  to  the 
act  in  contemplation ;  expressions  of  animosity  against  the  subject 
of  it ;  and  actual  declarations  of  intention,  or  utterance  of  threats  to 
commit  it ;  all  showing  tlie  impression  of  a  motive,  and  the  existence 
of  a  purpose,  more  or  less  distinctly  formed  or  entertained.  Fourthly, 
preparations  for  committing  the  offense;  showing  the  motive  in  its 
fullest  o})eration,  and  a  purpose  fixed  and  matured.  Fifthly,  oppor- 
tunities and  facilities,  including  the  actual  possession  of  the  means  for 
committing  the  crime;  serving  often  to  impart  additional  strength  to 
motives.  Lastly,  actual  attempts,  stopping  short  only  of  full  and  effect- 
ual perpetration.  But,  as  the  law  does  not  allow  general  character  to 
be  adduced,  in  the  first  instance,  in  evidence,  as  a  criminative  circum- 
stance, judicial  investigation  must  commence  from  a  lower  point  in 
the  series  above  indicated,  and  cannot  go  farther  back  than  those 
circumstances  which  tend  to  show  a  motive  on  the  part  of  the  ac- 
cused."^" The  concomitant  circumstances  are  such,  in  the  main,  as 
are  part  of  the  res  gestae,  but  under  this  head  may  also  be  included 
not  only  such  as  are  precisely  contemporaneous  with  the  transaction, 
but  also  such  as  immediately  precede  or  follow  it.  The  presence  of  the 
accused  at  the  scene  of  the  crime  or  his  proximity  thereto  about  the 
time  of  its  commission,  is  an  example  of  such  a  circumstance,  and 
evidence  of  footprints,  preparation  and  other  conduct  and  movements 
of  the  accused  about  the  time  is  often  admissible.  Subsequent  con- 
duct, such  as  the  fabrication  or  suppression  of  evidence,  flight,  posses- 
sion of  stolen  goods  or  fruits  of  the  crime,  demeanor  and  conduct  of 
the  accused  when  arrested  or  charged  with  the  crime,  and  the  like,  may 
also  be  shown  in  a  proper  case. 

§  2713.  Circumstantial  evidence — Proof  of  every  link  beyond  rea- 
sonable doubt. — It  has  often  been  said  that  "no  chain  is  stronger 
than  its  weakest  link"  and  that  each  necessary  link  in  the  chain  of 
evidence  must  be  proved  beyond  a  reasonable  doubt  in  order  to  sus- 

'"Burrill  Circ.  Ev.  280,  281;  see  also,  Bulloch  v.  State,  10  Ga.  47.  54 
Am.  Dec.  369. 


§    2713.]  GENERAL   PRINCIPLES   AND   RULES,  16 

tain  a  verdict  of  guilty  in  a  criminal  case  resting  upon  circumstantial 
evidence.*^  Rightly  understood,  this  is  doubtless  true.  But  it  has  also 
been  said  that  the  doctrine  of  reasonable  doubt  does  not,  as  a  rule,  ap- 
ply to  mere  matters  of  subsidiary  evidence,  taken  item  by  item,  which 
may  aid  in  proving  the  essential  facts,  but  only  to  the  essential  facts 
which  establish  the  defendant's  guilt;  and  if  such  facts  are  fully 
proved  so  that  the  jury  is  convinced  of  defendant's  guilt  beyond  a 
reasonable  doubt,  he  may  properly  be  convicted."*-  We  do  not  under- 
stand, however,  that  there  is  necessarily  any  conflict  between  these  two 
statements,  and  the  subject  is  thus  explained  in  a  recent  case :  "It  is 
not  necessary  that  each  essential  fact  in  the  chain  of  evidence  solely 
relied  on  to  connect  the  accused  with  the  commission  of  the  ojffense, 
when  separately  considered,  be  found  beyond  reasonable  doubt.  Such 
a  fact,  though  having  little  to  sustain  it  when  standing  alone,  may  de- 
rive such  support  from  others  immediately  connected  therewith  as  to 
exclude  all  doubt  of  its  existence.  Nevertheless,  if  conviction  de- 
pends entirely  on  different  circumstances,  arranged  linkwise,  connect- 
ing the  defendant  with  the  crime  charged,  then  each  and  every  one 
of  these  must  be  established  beyond  a  reasonable  doubt,  for  no  chain 
can  be  stronger  than  its  weakest  link.  Not  so,  however,  with  the 
minor  circumstances  relied  on  by  the  state  to  establish  the  ultimate 
and  essential  facts  upon  which  conviction  depends.  Some  of  these 
may  fail  of  proof,  and  yet  those  essential  to  conviction  be  found  from 
other  evidence  beyond  a  reasonable  doubt."*^ 

"People  V.   Aiken,    66   Mich.    460,  78  Am.  Dec.  253,  note;   62  Am.  Dec. 

33  N.  W.  821,  11  Am.  St.  512;   Sum-  182,  note. 

ner  v.   State,  5  Blackf.    (Ind.)    579,  *=  Hauk  v.  State.  148  Ind.  238,  254, 

36  Am.  Dec.  561;   Home  v.  State,  1  46  N.  E.  127,  47  N.  E.  465;  Goodwin 

Kans.  42,  81  Am.  Dec.  499,  and  note;  v.  State.  96  Ind.  550;  Wade  v.  State, 

Commonwealth  v.  Webster,  5  Cush.  71  Ind.  535;   Hinshaw  v.  State,  147 

(Mass.)    295,  52  Am.  Dec.  711,  and  Ind.    334,    47    N.    E.    157;    see    also, 

note;  Kollock  v.  State,  88  Wis.  663,  Dressier   v.    People,    117    111.    422,    8 

60  N.  W.   817;    Marion  v.   State,  20  N.  E.  62;  Horn  v.  State,  (Wyo.)  73 

Neb.  233,  29  N.  W.  911,  57  Am.  R.  Pac.  705.  724. 

825;  State  v.  Furney,  41  Kans.  115,  "^  State   v.    Cohen,   108   Iowa   208, 

21  Pac.  213.  13  Am.  St.  262;    State  78  N.  W.  857.  75  Am.  St.  213,  215; 

V.  Gleim,  17  Mont.  17,  41  Pac.  998,  see    also.    Leonard    v.    Territory,    2 

52  Am.  St.  655;    Clara  v.  People,  9  Wash.  Ter.  881,  7  Pac.  872;  Carlton 

Colo.    122,    10    Pac.    799;    People    v.  v.  People,  150  111.  181,  37  N.  E.  244, 

Phipps,  39  Cal.  333;  Crow  v.  State,  41   Am.   St.   346;    State  v.   Hayden, 

33  Tex.  Cr.  App.  264,  26  S.  W.  209;  45  Iowa  17. 


17  SUBSTANCE   OF    CHARGE.  [§    2714. 

§  2714.  Substance  of  the  charge — Venue — Variance. — In  crim- 
inal as  well  as  civil  cases  it  is  the  rule  that  the  substance  of  the 
charge  or  issue  must  be  proved,  and  that  if  it  is  not  proved,  tlie 
variance  will  usually  be  fatal.  Indeed,  in  some  jurisdictions,  the 
courts  incline  to  require  greater  strictness  of  proof  on  the  trial  of  a 
prosecution  for  crime  than  in  a  civil  action.'*^  But  proof  of  the  sub- 
stance or  essence  of  the  crime  in  a  manner  which  substantially  con- 
forms to  the  description  in  the  indictment  is  usually  sufficient.  The 
names  of  the  persons  injured  and  of  others  whose  existence  is  essential 
to  the  charge  must,  ordinarily,  be  proved  as  laid,*^  but  if  there  is  suf- 
ficient evidence  of  identification  a  mistake  in  spelling  or  the  like,  will 
not  necessarily  be  fatal,  at  least  where  the  names  are  idem 
sonans.^^  So,  while  time  and  place  are  not  always  material  in  such  a 
sense  that  they  must  be  proved  precisely  as  alleged,*'^  yet  in  some  in- 
stances they  are  material  and  even  essential  ingredients  of  the  crime 
and  must  be  proved  as  alleged,*''  and  in  other  instances,  by  the  man- 
ner of  pleading,  matters  of  description  or  detail  may  be  made  es- 
sential to  be  proved.*®  It  is  also  necessary,  as  a  general  rule,  no  mat- 
ter whether  the  exact  time  and  place  are  material  or  not,  to  prove 
that  the  crime  was  committed  before  the  time  of  the  indictment  and 
within  the  jurisdiction  of  the  court.^°    But  the  venue  mav  be  in- 

*^See,  Vol.  I,  §  200;  as  to  proving  So.   306;    Johnson  v.   State,   13   Ind. 

intent  as  alleged,  see,  Rex  v.  Jenks,  App.    299,   41   N.   E.   550;    Common- 

2  Leach  C.  C.  896,  2  East  P.  C.  514;  wealth     v.      Harrington.      3      Pick. 

Rex  v.  Boyce,  1  Moody  C.  C.  29.  (Mass.)   26;   Hans  v.  State,  50  Neb. 

"Vol.  I,  §  200;  Rex  v.  Jenks,  2  150,  69  N.  W.  838;  People  v.  Jack- 
East  P.  C.  514,  2  Leach  C.  C.  896;  son.  111  N.  Y.  362,  19  N.  E.  54; 
Rex  v.  Walker,  3  Campb.  264;  Rex  Crass  v.  State,  30  Tex.  App.  480,  17 
v.  Deeley,  4  Car.  &  P.  579,  1  Moody  S.  W.  1096;  United  States  v.  Mat- 
C.  C.  303;  Johnson  v.  State,  111  thews,  68  Fed.  880. 
Ala.  66,  20  So.  590;  People  v.  Arm-  "Commonwealth  v.  Purdy,  146 
strong,  114  Cal.  570,  46  Pac.  611;  Mass.  138,  15  N.  E.  364;  State  v. 
Sykes  v.  People,  132  111.  32,  23  N.  Libby,  84  Me.  461,  24  Atl.  940. 
E.  391;  King  v.  State,  44  Ind.  285.  '^  See,  Wiley  v.  State,  74  Ga.  840; 

"Vol.   I,   §  200;    see   also.   Rex  v.  State    v.    Buckles,     26    Kans.    237; 

Peace,  3  B.  &  Aid.  579,  1  Lead.  Cr.  State  v.  Jackson,  30  Me.  29;   Sweat 

Cas.    226;    State    v.    Grant,    22    Me.  v.  State,  4  Tex.  App.  617;   Coleman 

171;    Williams   v.   United    States,    3  v.  State,  21  Tex.  App.  520,  2  S.  W. 

App.   (D.  C.)   335;   State  v.  Gordon,  859. 

56  Kans.  64,  42  Pac.  346;   Smurr  v.  »» State  v.  Bain,  43  Kans.   638,  23 

State.  88  Ind.  504;  Weitzel  v.  State,  Pac.  1070;  State  v.  Dorr.  82  Me.  212, 

28  Tex.  App.  523,  13  S.  W.  864.  19  Atl.  171;   Areia  v.  State.  28  Tex. 

*' Smith  V.   State,   108  Ala.   1,   19  App.  198,  12  S.  W.  599;  see  further 

Vol.  4  Elliott  Ev.— 2 


§    2714.]  GENEILVL    PRINCIPLES    AND   RULES.  18 

ferred  from  circumstantial  evidence^^  as  well  as  proved  by  direct  evi- 
dence. The  strictness  of  the  old  rule  as  to  variance  between  the 
proof  and  the  indictment  has  been  much  relaxed  in  modern  times, 
and  it  is  said  that  variances  are  regarded  as  material  because  they 
may  mislead  the  prisoner  and  because  they  may  expose  him  to  the 
danger  of  being  again  put  in  jeopardy  "for  the  same  offense,  and  if 
they  are  not  of  a  nature  or  extent  to  have  any  such  effect  they  should 
not  be  regarded  as  fatal."'-  "The  general  rule  is  that  all  averments 
necessary  to  constitute  the  substantive  offense  must  be  proved.  If 
there  is  any  exception,  it  is  from  necessity,  or  great  difficulty  amount- 
ing to  such  necessity,  as  where  one  could  not  show  the  negative  and 
where  the  other  with  perfect  ease  can  show  the  affirmative."^^  But 
mere  surplusage  which  might  have  been  omitted  without  affecting  the 
indictment  and  which  is  not  in  any  way  essential  to  mark  or  dis- 
tinguish the  crime  need  not,  as  a  rule,  be  proved  as  alleged.^*  And  it 
is  held  that  "where  an  offense  may  be  committed  by  doing  one  of  sev- 
eral things,  the  inciictment  may,  in  a  single  count,  group  them  to- 
gether, and  charge  the  defendant  with  having  committed  them  all, 
and  a  conviction  may  be  had  on  proof  of  the  commission  of  any 
one  of  these  things  without  proof  of  the  commission  of  the  others."^^ 

as  to  proving  venue,  Luck  v.  State,  man  v.  State,  12  Tex.  App.  406,  407; 

96  Ind.  16;  Harlan  V.  State.  134  Ind.  Dumas    v.    State,    62    Ga.    58,    65; 

339,  33  N.  E.  1102;   Berry  v.  State,  Weinecke   v.    State,   34  Neb.   14.  51 

92  Ga.  47,  17  S.  E.  1006;    Leslie  v.  N.  W.  307;   Robson  v.  State,  83  Ga. 

State,  35  Fla.  184,  17  So.  559;  State  166,  9  S.  E.  610;   State  v.  Small,  26 

V.    Farley,    87    Iowa    22,    53    N.    W.  Kans.    209;      Brooke   v.    People,    23 

1089;    People    v.    Curley,    99    Mich.  Colo.   375,  48  Pac.   502.    It  has  also 

238,  58  N.  W.  68;  Ryan  v.  State,  22  been  held  that  it  need  not  be  proved 

Tex.  App.  699,  3  S.  W.  547;  State  v.  beyond  a  reasonable  doubt.    Wilson 

Hobbs,  37  W.  Va.  812,  17  S.  E.  380.  v.  State,  62  Ark.  497,  36  S.  W.  842, 

"McCune  v.  State,  42  Fla.  192,  27  54  Am.  St.  303;    State  v.  Burns,  48 

So.  867,  89  Am.  St.  227;  Johnson  v.  Mo.  438,  440;  Boggs  v.  State,  (Tex.) 

State,  35  Ala.  370;  State  v.  Morgan.  25   S.  W.   770;    State  v.  Benson,  22 

35   La.  Ann.   293;    Tinney  v.   State,  Kans.    471;     Warrace    v.    State.    27 

111   Ala.   74,   20    So.   597;    Bloom   v.  Fla.    362,    8    So.    748;     Hoffman    v. 

State,    68    Ark.    336,    58    S.    W.    41;  State,   12   Tex.  App.  406,   407;    Ach- 

People    V.    Kamaunu,    110    Cal.    609,  terberg  v.  State,  8  Tex.  App.  463. 

42  Pac.  1090;  Thornell  v.  People,  11  ^^  Harris  v.  People,  64  N.  Y.  148, 

Colo.    305,    17    Pac.    904;    Common-  154. 

wealth  V.  Costley,  118  Mass.  1,  9,  26;  "Commonwealth    v.    Thurlow,    24 

Bland  v.  People,  4  111.  364;   State  v.  Pick.  (Mass.)   374,  381. 

Snyder,  44  Mo.  App.  429,  430;  State  "See,    Commonwealth    v.    Rowell, 

V.  McGinniss,  74  Mo.  245,  246;  Beav-  146  Mass.  128,  15  N.  E.  154. 

ers  v.  State,  58  Ind.  530,  537;   Hoff-  ^  Bork  v.  People,  91  N.  Y.  5,  13; 


19 


IDENTITY. 


[§ 


§  2715.  Identity. — After  the  corpus  delicti  is  proved  the  next 
thing,  ordinarily,  is  to  connect  the  accused  with  the  crime,  and  for 
this  purpose  direct  evidence  of  his  identity  as  the  perpetrator  of  the 
crime  is,  of  course,  admissible,  and  it  is  held  that  the  identifying  wit- 
ness need  not  be  positive,  but  may  speak  according  to  his  best  impres- 
sion and  belief.^"  The  evidence  may  be  either  direct  or  circumstan- 
tial and  is  often  permitted  to  take  a  wide  range,  both  upon  examina- 
tion in  chief  and  cross-examination.'^  A  witness  may  identify  the 
accused  by  his  voice,  without  seeing  him,'«  at  least  where  the  voice 
is  peculiar,  although  such  evidence  is  not  always  regarded  as  very 
satisfactory.^"  So,  evidence  of  footprints  at  the  scene  of  the  crime 
and  a  comparison  of  them  with  those  of  the  accused  is  relevant  and 
admissible  in  a  proper  case  for  the  same  purpose ;"''  and  weapons, 
burglarious  tools,  clothing,  and  the  like,  belonging  to  the  accused  or 
found  in  his  possession  at  or  near  the  scene  of  the  crime  may  usually 


see  also,  Harris  v.  People,  64  N.  Y. 
148,  153;  Reg.  v.  Rhodes,  2  Ld. 
Raym.  886;  Roscoe  Cr.  Ev.  (6th  Am. 
ed.)  763;  3  Russell  Crimes  (4th  ed.) 
105;  3  Starkie  Ev.  860. 

°« People  V.  Young,  102  Cal.  411, 
36  Pac.  770;  People  v.  Rolfe,  61  Cal. 
540;  People  v.  Stanley,  101  Mich. 
93,  59  N.  W.  498;  State  v.  Cushen- 
berry,  157  Mo.  168,  56  S.  W.  737; 
People  v.  Burt,  170  N.  Y.  560,  62  N. 
E.  1099;  State  v.  Lytle,  117  N.  Car. 
799,  23  S.  E.  476;  for  many  inter- 
esting instances  of  mistaken  identi- 
ty, see.  Ram  Facts,  462;  Harris  Be- 
fore Tr.  (Am.  ed.)  372;  Sergeant 
Ballantine  Experiences,  Chap.  XLI, 
XLH;  Legal  Puzzles,  183;  1  South. 
Law  J.  392;  Burrill  Circ.  Ev.  631- 
651. 

'"  See,  Yarbough  v.  State,  105  Ala. 
43,  16  So.  758;  State  v.  Stebbins,  29 
Conn.  463,  79  Am.  Dec.  223;  State 
V.  Bartlett,  55  Me.  200;  Common- 
wealth v.  Campbell,  155  Mass.  537, 
30  N.  E.  72;  People  v.  Carey,  125 
Mich.  535.  84  N.  W.  1087;  Davis  v. 
State,  51  Neb.  301,  70  N.  W.  984; 
State   V.   McDaniel,   39  Ore.   161,  65 


Pac.  520;  State  v.  Martin,  47  S.  Car. 
67,  25  S.  E.  113;  Olive  v.  State,  11 
Neb.  1,  7  N.  W.  444  (cross-examina- 
tion); Mixon  V.  State,  55  Miss.  525. 

'^'Fussell  V.  State,  93  Ga.  450,  21 
S.  E.  97;  State  v.  Kepper,  65  Iowa 
745,  23  N.  W.  304;  Commonwealth 
V.  Hayes,  138  Mass.  185;  Common- 
wealth V.  Williams,  105  Mass.  62; 
People  V.  Willett,  92  N.  Y.  29; 
Brown  v.  Commonwealth,  76  Pa.  St. 
319;  Davis  v.  State,  15  Tex.  App. 
594;  Givens  v.  State,  35  Tex.  Cr. 
App.  563,  34  S.  W.  626;  Rex  v.  Har- 
rison, 12  St.  Tr.  850. 

"'■'  See,  1  Elliott  Gen.  Pr.,  §  38. 

"o  Morris  v.  State,  124  Ala.  44,  27 
So.  336;  People  v.  Rowell.  133  Cal. 
39,  65  Pac.  127;  People  v.  Keep.  123 
Mich.  231,  81  N.  W.  1097;  State  v. 
Reed,  89  Mo.  168,  1  S.  W.  225;  Gray 
v.  State,  42  Fla.  174,  28  So.  53;  Com- 
monwealth V.  Pope,  103  Mass.  440; 
State  V.  Morris,  84  N.  Car.  756; 
State  V.  Reitz,  83  N.  Car.  634:  Lipes 
V.  State,  15  Lea  (Tenn.)  125,  54 
Am.  R.  402;  Goldsmith  v.  State,  32 
Tex.  Cr.  App.  112,  22  S.  W.  405. 


§    2716.]  GENERAL    TRINCIPLES    AND   RULES.  20 

be  shown.^^  The  use  of  evidence  of  tracking  by  bloodhounds/*  and 
the  subject  of  physical  inspection^'  haye  already  been  considered,  and 
so  has  the  use  of  photographs. 

§  2716.  Criminal  intent. — It  has  been  said  that  a  cardinal  doc- 
trine of  criminal  law,  founded  in  natural  justice,  is  that  it  is  the  in- 
tention with  which  an  act  was  done  that  constitutes  its  criminality. 
The  intent  and  the  act  must  both  concur,  to  constitute  the  crime.^* 
But  it  is  not  always  true  that  there  must  be  any  specific  intent,  other, 
at  least,  than  the  intent  to  do  the  act  which  the  law  forbids  and  de- 
nounces as  a  crime,  even  though  the  accused  did  not  know  that  it  was 
a  crime.*'^  "The  proof,"  it  has  been  said,  "may  be  either  by  evidence, 
direct  or  indirect,  tending  to  establish  the  fact;  or  by  inference  of 
law  from  other  facts  proved."  While  it  is  a  maxim  of  law  that  every 
person  is  to  be  presumed  innocent  until  he  is  proved  to  be  guilty ;  yet 
it  is  also  said  that  every  sane  person  must  be  supposed  to  intend 
that  which  is  the  ordinary  and  natural  consequence  of  his  own  volun- 
tary act,  and  when  he  voluntarily  does  an  act  which  the  law  denounces 
as  a  crime  and  the  intention  to  do  the  act  is  the  only  criminal  intent 
required,  he  will  not  be  heard  to  say  that  he  had  no  criminal  intent.  It 
follows  that,  as  a  general  rule,  "where  an  act,  in  itself  indifferent,  be- 
comes criminal  if  done  with  a  particular  intent,  there  the  intent  must 
be  proved  and  found ;  but  where  the  act  is  in  itself  unlawful,  the  law 
usually  implies  a  criminal  intent."®' 

« Commonwealth    v.    Hagan.    170  Neb.  136,  87  N.  W.  25,  89  Am.  St. 

Mass.   571,   49    N.   E.   922;    State  v.  743;  Commonwealth  v.  Murphy,  165 

Campbell,'?  N.   Dak.   58,  72   N.  W.  Mass.  66,  42  N.  B.  504,  52  Am.  St. 

935;    Sibe'rry  v.  State,  133  Ind.  677,  496;   Haggerty  v.  St.  Louis  &c.  Co.. 

33  N.  E.  681;   and  see,  sections  on,  143  Mo.  238,  44  S.  W.  1114,  65  Am. 

"Conduct    indicating    consciousness  St.   647;    State  v.  Zichfeld,  23  Nev. 

of    guilt,"    and    "Recent    possession  304,  46  Pac.  802,  62  Am.  St.  800. 

of  stolen  property."  «'Rex  v.  Woodfall,  5  Burr.  2667; 

"  See,  Vol.  II,  §  1253.  State  v.  Levelle,  34  S.  Car.  120,  27 

«'See',  Vol.  Il',  §§  1014,  1232.  Am.  St.  799;    State  v.  Huff,  89  Me. 

«*3    Greenleaf    Ev.,    §    13,    citing,  521,  36  Atl.  1000;  Commonwealth  v. 

Mackmurdo    v.    Smith,    7    Term    R.  York,  9  Mete.   (Mass.)    93;    State  v. 

514,  per  Ld.  Kenyon;  see  also,  Peo-  Zichfeld,  23  Nev.   304,   46  Pac.   802. 

pie  V.  Flack,  125  N.  Y.  324,  26  N.  B.  62  Am.   St.   800;    Commonwealth  v. 

267;    State  v.  Nuttles.  7  Ohio  Dec.  Murphy,  165  Mass.  66,  42  N.  E.  504. 

686;   State  v.  King,  86  N.  Car.  603;  52  Am.  St.  496;    State  v.   Southern 

Smith,  Ex  parte.  135  Mo.  223,  36  S.  R.   Co.,  122   N.  Car.  1052,   30  S.  E. 

W.  628,  58  Am.  St.  576;   20  Am.  St.  133;  State  v.  King,  86  N.  Car.  603; 

741,  note.  see.  Vol.  I,  §  97. 

^=See.    State    v.    Heldenbrand,    62 


21 


CRIMINAL   INTENT. 


[§§ 


2718. 


§  2717.  Crimmal  intent — Direct  evidence. — As  already  stated,  the 
criminal  intent  may  be  shown  by  direct  as  well  as  indirect  evidence, 
although  it  is  often  impossible  to  do  so  because  direct  evidence  cannot 
be  obtained.  In  a  recent  case  it  is  said :  "Wlienever  the  motive,  be- 
lief, or  intention  of  the  person  is  a  material  fact  to  be  proved  under 
the  issue,  it  is  competent  to  prove  that  such  motive,  belief  or  intention 
was  by  the  direct  testimony  of  such  person,  whether  he  happens  to 
be  a  party  to  the  action  or  not.""^  Under  or  in  accordance  with  this 
rule  it  is  held  in  many  jurisdictions  that  the  defendant  may  himself 
testify  as  to  his  intent/^  and  that  it  is  a  question  of  fact  for  the  jury,*'" 
except  where  the  law  conclusively  presumes  a  certain  intent  from  the 
doing  of  a  certain  act.'"* 

§  2718.  Criminal  intent — Circumstantial  and  presumptive  evi- 
dence.— It  is  often  impossible  to  know  the  real  intent  of  a  person  ex- 
cept by  its  outward  or  visible  manifestations  through  his  conduct  or 
acts,  and  these,  so  far  as  relevant,  may  usually  be  shown  for  that  pur- 
pose, the  presumption  or  inference  ordinarily  being  that  the  natural 
consequences  were  intended.  This,  it  has  been  said,  "is  founded  upon 
experience  gained  by  a  study  of  human  nature,  whereby  it  is  found 
that  all  men  are  largely  influenced  by  the  same  motives,  and  that 


»^  Olson  V.  United  States,  133  Fed. 
849,  856,  citing,  Berkey  v.  Judd,  22 
Minn.  287;  Garrett  v.  Mannheimer, 
24  Minn.  193;  Gardom  v.  Woodward, 
44  Kans.  758,  25  Pac.  199,  21  Am.  St. 
310;  Frost  v.  Rosecrans,  66  Iowa 
405,  23  N.  W.  895. 

•^  Kerrains  v.  People,  60  N.  Y.  221; 
People  V.  Baker,  96  N.  Y.  340;  Ross 
v.  State,  116  Ind.  495,  19  N.  E.  451; 
Hamilton  v.  State,  22  Ind.  App.  479, 
486,  52  N.  E.  419;  Greer  v.  State,  53 
Ind.  420;  White  v.  State,  53  Ind. 
595;  Smith  v.  State,  13  Tex.  App. 
507;  People  v.  Farrell,  31  Cal.  576; 
People  V.  Quick,  51  Mich.  547,  18  N. 
W.  375;  State  v.  Montgomery,  65 
Iowa  483,  22  N.  W.  639;  State  v. 
King,  86  N.  Car.  603;  "Evidence  of 
Intent,"  22  Cent.  L.  J.  271. 

"'People  V.  Flack,  125  N.  Y.  334, 
26  N.  E.  267,  11  L.  R.  A.  307;  Mc- 
Kenna  v.  People,  81  N.  Y.  360;  Peo- 


ple V.  Winters,  93  Cal.  277,  28  Pac. 
946;  People  v.  Griffin,  77  Mich.  585, 
43  N.  W.  1061;  Burke  v.  State,  71 
Ala.  377;  Carter  v.  State,  22  Fla. 
553;  Russell  v.  State,  68  Ga.  785; 
State  V.  Swayze,  30  La.  Ann.  1325; 
Buckner  v.  Commonwealth,  14  Bush 
(Ky.)  603;  see  also.  Berry  v.  State, 
31  Ohio  St.  219. 

"•  See,  1  Bishop  Cr.  Law  314;  Ride- 
nour  V.  State,  38  Ohio  St.  272; 
Shover  v.  State,  10  Ark.  259;  Achey 
V.  State,  64  Ind.  56,  59;  Flinn  v. 
State  24  Ind.  286;  Commonwealth  v. 
York,  9  Mete.  (Mass.)  93,  43  Am. 
Dec.  373;  Commonwealth  v.  Web- 
ster, 5  Gush.  (Mass.)  295;  State  v. 
Smith,  93  N.  Car.  516;  State  v.  Lau- 
tenschlager,  22  Minn.  514;  People  v. 
Petheram,  64  Mich.  252,  31  N.  W. 
188;  Reynolds  v.  United  States,  98 
U.  S.  145. 


§    2718.]  GENERAL   PRINCIPLES   AND   RULES.  23 

certain  acts  indicate  certain  intentions.  Therefore,  proof  of  such 
acts  is  circumstantially,  at  least,  proof  of  the  intention  which  usually 
accompanies  them.  The  inference  to  be  drawn  from  the  acts  and 
circumstances  is  usually  one  of  fact  for  the  jury  to  determine;  but 
there  are  some  instances  where,  as  experience  has  shown,  there  can 
be  but  one  reasonable  inference,  which  of  necessity  arises  from  the 
facts  as  they  stand  otherwise  unexplained."^^  But,  in  most  cases  the 
intention  is  not  so  clearly  or  conclusively  shown  that  the  law  itself 
can  draw  the  inference,  and  it  is  then  necessary  to  prove  acts  and  cir- 
cumstances from  which  the  court  or  jury  may  draw  the  inference 
as  a  fact.  As  said  in  one  case,  "intention  is  an  inferential  fact  to  be 
drawn  by  the  jury  from  proven  attendant  facts  and  circumstances."^^ 
"The  force  of  the  inference,"  says  Starkie,  "results  from  the  con- 
sideration that  the  intention  of  a  rational  agent  corresponds  with  the 
means  which  he  employs,  and  that  he  intends  that  consequence  to 
which  his  conduct  naturally  and  immediately  tends."'^^  It  may  be 
stated  generally  that  all  the  attendant  and  surrounding  facts  and  cir- 
cumstances tending  directly  or  indirectly  to  throw  light  on  the  in- 
tention, may  usually  be  given  in  evidence,  unless  excluded  by  some 
other  rule  of  evidence  applicable  to  the  particular  case.  "So,  in  crimi- 
nal prosecutions,  evidence  of  other  acts  contemporaneous  with  the 
principal  transaction  may  often  be  admitted  to  show  criminal  intent.'^* 
And  it  has  been  held  that  tlie  manner  of  one  accused  of  passing  coun- 
terfeit money,  at  the  time  of  passing  it,  may  be  shown,  as  tending  to 
prove  guilty  knowledge  and  intent."'^^  So,  too,  other  acts  of  a  similar 
character,  or  done  by  the  accused  with  a  similar  intent,  although 
committed  before  or  after  the  doing  of  the  principal  act,  may  often 
be  given  in  evidence/*'  even  though  the  evidence  of  such  other  facts 
offered  to  prove  intent,  at  the  same  time  proves  the  commission  of 

"  22  Cent.  L.  J.  272.  '^^  Butler    v.     State,    22    Ala.     43; 

'=  Burke  v.    State,   71    Ala.   377.   5  State   v.    Middleham,    62    Iowa    150, 

Cr.  L.  Mag.  912;    see  also.  Spies  v.  17  N.  W.  446,  18  Cent.  L.  J.  56. 

People,   122   111.   1,   12  N.   E.   865,   3  '"Goersen  v.  State,  99  Pa.  St.  388; 

Am.  St.  320,  398.  Rex  v.  Ball,  1  Campb,  324;    Rex  v. 

'-2  Starkie  Ev.  *739.  Smith,  4  Car.  &  P.  411;  State  v.  Mix, 

'*Rex  v.  Long,  6  Car.  &  P.  179;  15  Mo.  153;  Williams  v.  State,  8 
"White  v.  State,  11  Tex.  769,  773;  Humph.  (Tenn.)  585;  Common- 
Dibble  v.  People,  4  Park.  Cr.  Cas.  wealth  v.  McCarthy,  119  Mass.  254; 
(N.  Y.)  199;  People  V.  Lopez,  59  Cal.  United  States  v.  Russell,  19  Fed. 
362;  Commonwealth  v.  Stone,  4  591,  18  Cent.  L.  J.  318;  Porter  v. 
Mete.  (Mass.)  43;  3  Greenleaf  Ev.,  Stone,  62  Iowa  442,  17  N.  W.  654. 
§  19. 


33  MOTIVE,  [§  2719, 

another  crime."  The  general  rule,  however,  as  will  hereafter  be 
shown,  is  that  evidence  of  entirely  distinct  and  independent  crimes 
is  incompetent  and  inadmissible  to  show  that  the  accused  committed 
the  crime  in  question, 

§  2719.  Motive.— The  terms  "motive"  and  "intention"  are  some- 
times used  without  distinction,  but  motive  generally  precedes  inten- 
tion and  is  that  which  causes  or  induces  the  act,  and  there  may  be  an 
intention  without  any  motive,  at  least  so  far  as  can  be  ascertained,  so 
that  it  is  noi>  always  necessary  to  show  a  motive  for  the  alleged 
crime,' ^  but  it  is  usually  relevant,  and  the  presence  or  absence  of  a 
motive  is  sometimes  controlling."^  Thus,  in  a  recent  case  it  is  said: 
"In  the  investigation  of  all  charges  of  crime  it  is  competent  to  prove 
a  motive  on  the  part  of  the  accused  for  the  commission  of  the  crimi- 
nal act.  Motive  is  an  inducement,  or  that  which  leads  or  tempts  the 
mind  to  indulge  the  criminal  act.  It  is  resorted  to  as  a  means  of 
arriving  at  an  ultimate  fact,  not  for  the  purpose  of  explaining  the 
reason  of  a  criminal  act,  which  has  been  clearly  proved,  but  for  the 
important  aid  it  may  render  in  completing  the  proof  of  the  com- 
mission of  the  act  when  it  might  otherwise  remain  in  doubt.  With 
motives,  in  any  speculative  sense,  neither  the  law  nor  the  tribunal 
which  administers  it  has  any  concern.  It  is  in  cases  of  proof  by  cir- 
cumstantial evidence  that  the  motive  often  becomes  not  only  ma- 

"  Moore  v.  United   States,  150  U.  pal  heads:— The  desire  of  unlawful 

S.  57,  14  Sup.  Ct.  26;  Dunn  v.  State,  gain,    and    the    gratification    of    un- 

2  Ark.  229,  35  Am.  Dec.  54;  Shried-  lawful   passion."     Burrill   Circ.  Ev. 

ley  V.  State,  23  Ohio  St.  130;  Bersh  285. 

V.  State,  13  Ind.  434;    Reg.  v.  Dos-  ""People  v.  Fitzgerald,  156   N.  Y. 

sett,   2   Car.    &   Kir.   306;    Common-  253,  258,  50  N.  E.  846;   Kennedy  v. 

wealth   V.   Bradford,   126   Mass.    42;  People,    39    N.    Y.    245;      Jones    v. 

State  v.  Riggs,  39  Conn.  498;  Roscoe  State,    64    Ind.    473;      Davidson    v. 

Cr.  Ev.  *95;  1  Bishop  Cr.  Pro.,  §  493;  State,   135    Ind.   254,   34   N.   E.  972; 

but  compare,  State  v.  Goetz,  34  Mo.  Bonner  v.  State,  107  Ala.  97,  18  So. 

85;  State  v.  Harrold,  38  Mo.  496.  226;   Bulloch  v.  State,  10  Ga.  47,  54 

^*  See,  People  V.  Lane,  100  Cal.  379,  Am.  Dec.  369;    Hunter  v.   State,  43 

34  Pac.  856;   Commonwealth  v.  Jef-  Ga.   483;    People  v.   Wolf,   95   Mich, 

fries,  7  Allen  (Mass.)  548;  Goodwin  625,  55  N.  W.  357;  State  v.  Donnelly, 

V.   State,   96    Ind.   550;    Reynolds  v.  130   Mo.   642.   32   S.   W.   1124;    Com- 

State,  147  Ind.  3,  46  N.  E.  31;   Hin-  monwealth   v.   Ferrigan,   44  Pa.   St. 

Shaw  V.  State,  147  Ind.  334,  47  N.  E.  386;  Webb  v.  State,  73  Miss.  456,  19 

157.     "The  motives  to  the  commis-  So.  238;    State  v.  Burton.  63  Kans. 

sion    of    the    crime,"    says    Burrill,  602,  66  Pac.  633;   Vol.  I,  §  163,  and 

"may  be  reduced  under  two  prinri-  other  authorities  there  cited. 


§  2720.] 


GENERAL   PRINCIPLES   AND   RULES. 


24 


terial  but  controlling,  and  in  such  cases  the  facts  from  which  it  may 
be  inferred  must  be  proved.  It  cannot  be  imagined  any  more  than 
any  other  circumstance  in  the  case."^*'  But  even  where  circumstan- 
tial evidence  alone  is  relied  on  it  is  not  always  essential  that  a  mo- 
tive for  the  crime  be  established  nor  that  the  evidence  should  show 
it  was  impossible  for  any  one  else  to  have  committed  the  crime  ;'^^ 
and  the  motive  itself  may  be  established  by  circumstantial  evidence.**^ 
So,  on  the  other  hand,  motive,  it  has  been  said,  is  only  a  circumstance 
which  is  never  of  itself  sufficient  to  establish  defendant's  guilt,  and 
the  defendant  has  a  right,  if  he  can,  to  explain  the  act  which  is  of- 
fered as  evidence  of  a  wicked  motive,^^  and  the  jury  may,  if  they 
choose,  accept  his  explanation.  So,  evidence  showing  that  there  was 
no  apparent  motive,  or,  in  some  cases,  that  there  was  no  such  intent 
as  that  alleged,  is  admissible  in  his  favor  in  a  proper  case.^* 

§  2720.  Evidence  of  other  crimes. — As  a  general  rule,  evidence  is 
not  admissible  to  show  that  the  accused  has  committed  a  crime  wholly 
distinct  from  and  independent  of  that  for  which  he  is  on  trial.^'* 


«"  People  v.  Fitzgerald,  156  N.  Y. 
253,  50  N.  E.  846;  People  v.  Bennett, 
49  N.  Y.  137;  People  v.  Owens,  148 
N.  Y.  648.  43  N.  E.  71. 

"  Sumner  v.  State,  5  Blackf . 
(Ind.)  579.  36  Am.  Dec.  561;  Hin- 
shaw  V.  State.  147  Ind.  334,  47  N.  E. 
157. 

«=  People  v.  Wood,  3  Park.  Cr.  Cas. 
(N.  Y.)  681;  see  also,  Stitz  v.  State, 
104  Ind.  359,  4  N.  E.  145;  Hlnshaw 
v.  State,  147  Ind.  334,  47  N.  E.  157; 
Morris  v.  State,  30  Tex.  App.  95, 
16  S.  W.  757;  Chalk  v.  State,  35 
Tex.  Cr.  App.  116,  32  S.  W.  534; 
IVIarable  v.  State,  89  Ga.  425,  15  S.  E. 
453. 

«'  Stitz  v.  State,  104  Ind.  359,  4  N. 
E.  145;  see  also.  State  v.  Meche,  42 
La.  Ann.  273,  7  So.  573. 

"*  Robinson  v.  State,  53  Md.  151, 
36  Am.  R.  399;  State  v.  Meche,  42 
La.  Ann.  273,  7  So.  573;  Schwabach- 
er  V.  People,  165  111.  618,  46  N.  E. 
809;  that  he  may  testify  to  it  as  a 
fact,  see  also,  Fenwick  v.  State,  63 


Md.  239;  Commonwealth  v.  Wood- 
ward, 102  Mass.  155;  Cummings  v. 
State,  50  Neb.  274,  69  N.  W.  756; 
also  see.  Vol.  I,  §  163. 

^=  Bullock  v.  State.  65  N.  J.  L.  557. 
47  Atl.  62,  86  Am.  St.  568;  People 
V.  Corbin,  56  N.  Y.  363;  People  v. 
Sharp,  107  N.  Y.  427,  14  N.  E.  319, 
1  Am.  St.  851;  Coleman  v.  People, 
55  N.  Y.  81;  State  v.  Shuford,  69 
N.  Car.  486,  493;  State  v.  Jeffries, 
117  N.  Car.  727,  23  S.  E.  163;  State 
V.  Murphy,  84  N.  Car.  742;  Snyder 
v.  Commonwealth,  85  Pa.  St.  519, 
521;  Mason  v.  State,  42  Ala.  532, 
537;  Coble  v.  State.  31  Ohio  St.  100, 
102;  State  v.  Boyland,  24  Kans.  186, 
187;  Clapp  v.  State,  94  Tenn.  186, 
202,  203,  30  S.  W.  214;  People  v. 
Fowler,  104  Mich.  449,  62  N.  W.  572; 
People  V.  Baird,  104  Cal.  462,  464, 
38  Pac.  310;  People  v.  Bowen,  49 
Cal.  654;  State  v.  Moberly,  121  Mo. 
604,  26  S.  W.  364;  Farris  v.  People, 
129  111.  521,  21  N.  E.  821,  16  Am.  St. 
283;   Painter  v.  People,  147  111.  444, 


EVIDENCE   OF    OTHER   CRIMES. 


[§2720. 


But  there  are  cases  in  which  evidence  of  other  like  offenses  com- 
mitted by  the  defendant  is  relevant  and  admissible.  If  several  crimes 
are  so  intermingled,  blended  or  connected,  that  they  form  an  indivi- 
sible criminal  transaction  and  a  complete  account  of  the  transaction 
for  which  the  accused  is  being  tried  cannot  be  given,  without  show- 
ing the  others,  any  or  all  of  them  may  usually  be  shown,  at  least 
where  the  offense  for  whicli  he  is  being  tried  is,  itself,  a  detail  of  the 
whole  criminal  scheme."*'    Generally  speaking,  it  may  be  said  that  cvi- 


447,  463,  35  N.  E.  64;  Garrison  v. 
People,  87  111.  96;  State  v.  Burk,  88 
Iowa  661,  667,  56  N.  W.  180;  State 
V.  Crawford,  39  S.  Car.  343;  Cotton 
V.  State,  (Miss.)  17  So.  372;  State 
V.  Bates,  46  La.  Ann.  849,  851,  15 
So.  204;  Commonwealth  v.  Jackson, 
132  Mass.  16-21;  Holder  v.  State, 
58  Ark.  473,  25  S.  W.  279;  State  v. 
La  Page,  57  N.  H.  245;  Stone  v. 
State,  4  Humph.  (Tenn.)  27;  People 
V.  Stout,  4  Park.  Cr.  Cas.  (N.  Y.) 
71,  127;  People  v.  Bowling,  84  N. 
Y.  478;  State  v.  Kelley,  65  Vt.  531, 
27  Atl.  203;  Turner  v.  State,  102 
Ind.  425,  427,  1  N.  E.  869;  People  v. 
Thacker,  108  Mich.  652,  66  N.  W. 
562;  State  v.  Reynolds,  (Kans.)  47 
Pac.  573;  Ware  v.  State,  36  Tex.  Cr. 
App.  597,  38  S.  W.  198;  Tyrrell  v. 
State,  (Tex.)  38  S.  W.  1011;  Rhea 
v.  State,  37  Tex.  Cr.  App.  138,  38 
S.  W.  1012;  see  also,  State  v.  Crof- 
ford,  121  Iowa  395,  96  N.  W.  889; 
State  V.  Berger,  121  Iowa  581,  96 
N.  W.  1094;  State  v.  Williams,  111 
La.  Ann.  179,  35  So.  505;  State  v. 
Hendrick,  (N.  J.)  56  Atl.  247;  in. 
Shears  v.  State,  147  Ind.  51,  46  N. 
E.  331,  it  is  said:  "Wherever  the 
intent  with  which  an  alleged  offense 
was  committed  is  equivocal,  and 
such  intent  becomes  an  issue  at  the 
trial,  proof  of  other  similar  offenses, 
within  certain  reasonable  limits,  is 
admissible  as  tending  to  throw 
light  upon  the  intentions  of  the  ac- 
cused in  doing  the  act  complained 


of;  but  where,  from  the  nature  of 
the  offense  under  investigation, 
proof  of  its  commission  as  charged, 
as  in  the  case  before  us,  carries 
with  it  the  evident  implication  of 
a  criminal  intent,  evidence  of  the 
perpetration  of  other  like  olfenses, 
ought  not  to  be  admitted."  But 
see.  State  v.  Jones,  171  Mo.  401, 
71  S.  W.  680,  94  Am.  St.  786;  many 
authorities  are  reviewed  in  the  note 
in  62  L.  R.  A.  193;  but  admissions 
made  by  the  accused  before  a  crime, 
as  to  the  commission  of  other  inde- 
pendent crimes,  to  induce  a  third 
person  to  take  part  in  the  crime 
have  been  held  competent;  State  v. 
Hayward,  62  Minn.  474,  65  N.  W. 
63;  McSwean  v.  State,  113  Ala.  661, 
21  So.  211. 

^oRex  V.  Ellis,  6  B.  &  Cr.  139,  145; 
Reg.  V.  Roden,  10  Moak  511;  Com- 
monwealth V.  Call,  21  Pick.  (Mass.) 
515,  522;  Commonwealth  v.  Sturti- 
vant,  117  Mass.  122,  132;  Common- 
wealth V.  Corkin,  136  Mass.  429; 
State  V.  Valwell,  66  Vt.  558,  562,  29 
Atl.  1018;  People  v.  Bidleman,  104 
Cal.  608,  38  Pac.  502;  People  v.  Dai- 
ley,  143  N.  Y.  638,  73  Hun  (N.  Y.) 
16,  37  N.  E.  823,  25  N.  Y.  S.  1050; 
Mixon  V.  State,  (Tex.)  31  S.  W.  408; 
Turner  v.  State,  102  Ind.  425,  427,  1 
N.  E.  869;  Frazier  v.  State,  135  Ind. 
38,  41,  34  N.  E.  817;  Bottomley  v 
United  States,  1  Story  (U.  S.)  135; 
State  V.  Folwell,  14  Kans.  105;  Wal- 
ters v.  People,  6  Park.  Cr.  Cas.   (N. 


§  2721.] 


GENERAL    PRINCIPLES    AND    RULES. 


26 


dence  of  other  crimes  is  admissible  for  the  purpose  of  showing — 
when  it  fairly  tends  to  do  so — motive,  intent,  the  absence  of  mistake 
or  accident,  common  scheme  or  plan  embracing  the  commission  of 
two  or  more  crimes  so  related  to  each  other  that  proof  of  one  tends 
to  establish  the  others,  or  the  identit}^  of  the  person  charged  with  the 
commission  of  the  crime  on  trial. ^'  But  the  particulars  of  a  collateral 
crime  should  not  ordinarily  be  gone  into  further  than  they  are  rele- 
vant to  the  purpose  for  which  the  evidence  is  competent.'*'^ 

§  2721.  Character  of  accused. — The  subject  of  character  evidence 
in  its  general  aspect  was  fully  considered  in  another  volume.®''  For 
that  reason  and  for  the  further  reason  that  character  evidence  in 
particular  cases  will  be  considered  in  treating  of  specific  crimes,  it 
is  unnecessary  to  go  into  the  subject  very  fully  in  this  place.  It  is 
a  general  rule  that  the  accused  may  introduce  evidence  of  his  good 
character  at  least  so  far  as  it  relates  to  traits  of  character  relevant 
to  the  issue,°"  but  even  in  the  absence  of  any  evidence  on  the  subject 


Y.)  15,  22;  Reese  v.  State,  7  Ga. 
373;  People  v.  Haver,  4  N.  Y.  Cr. 
171;  Phillips  v.  People,  57  Barb. 
(N.  Y.)  353,  42  N.  Y.  200;  State  v. 
Desroches,  48  La.  Ann.  428,  19  So. 
250;  State  v.  Williamfion,  106  Mo. 
162,  170,  17  S.  W.  172;  Hickam  v. 
People,  137  111.  75,  27  N.  E.  88,  89; 
State  V.  Testerman,  68  Mo.  408,  415; 
State  V.  Perry,  136  Mo.  126,  37  S. 
W.  804;  Killins  v.  State,  28  Fla.  313, 
334,  9  So.  711;  State  v.  Gainor,  84 
Iowa  209,  50  N.  W.  947;  Pitner  v. 
State,  37  Tex.  Cr.  App.  268,  39  S.  W. 
662;  People  v.  Foley,  64  Mich.  148, 
157,  31  N.  W.  94;  Heath  v.  Common- 
wealth, 1  Rob.  fVa.)  735,  743; 
Brown  v.  Commonwealth,  76  Pa.  St. 
319,  337;  Commonwealth  v.  Robin- 
son, 146  Mass.  571,  578,  16  N.  E. 
452;  Crews  v.  State,  34  Tex.  Cr.  App. 
533,  31  S.  W.  373;  Morris  v.  State, 
30  Tex.  App.  95,  16  S.  W.  757;  Daw- 
son V.  State,  32  Tex.  Cr.  App.  535, 
25  S.  W.  21,  40  Am.  St.  791;  see 
also,  Commonwealth  v.  Major.  198 
Pa.  St.  290.  47  Atl.  741.  82  Am.  St. 


803;  Glover  v.  People,  204  111.  170. 
68  N.  E.  464. 

"People  V.  Molineux,  168  N.  Y. 
264,  61  N.  E.  286,  62  L.  R.  A.  193, 
and  elaborate  note;  State  v.  Vance, 
119  Iowa  685.  94  N.  W.  204;  note  in. 
44  Am.  R.  299-308;  see  also.  People 
v.  Seaman,  107  Mich.  348,  65  N.  W. 
203,  61  Am.  St.  326,  and  numerous 
authorities  cited  and  reviewed;  note 
in,  42  Am.  St.  333,  and  48  Am.  St. 
961;  Knights  v.  State,  58  Neb.  225, 
78  N  .W.  508.  76  Am.  St.  78;  Shried- 
ley  V.  State,  23  Ohio  St.  130;  Bain- 
bridge  V.  State,  30  Ohio  St.  264; 
Lindsey  v.  State,  38  Ohio  St.  507. 

«'Vol.  I,  §  175,  note  216. 

'^'See,  Vol.  I,  §§  167-171. 

""State  V.  Hice,  117  N.  Car.  782,  23 
S.  E.  357;  Hall  v.  State,  132  Ind. 
317,  31  N.  E.  536;  Griffin  v.  State, 
14  Ohio  St.  55;  State  v.  Schleagel, 
50  Kans.  325,  31  Pac.  1105;  People 
V.  Ashe,  44  Cal.  288;  State  v.  Dona- 
hoo,  22  W.  Va.  761;  Stover  v.  Peo- 
ple, 56  N.  Y.  315;  Cancemi  v.  People, 
16  N.  Y.  506,  and  numerous  authori- 


27 


CHARACTER    OF   ACCUSED. 


[§    2721. 


there  is  no  presumption  that  his  character  is  bad  and  no  unfavorable 
presumption  is  indulged  from  his  failure  to  offer  evidence  of  good 
character,  nor  can  it  be  commented  on,  in  most  jurisdictions,  by  the 
prosecutor.®^  The  prosecution  cannot  give  evidence  of  his  bad  char- 
acter unless  he  has  introduced  evidence  of  good  character,"-  except 
where  he  is  a  witness,  in  which  case  such  evidence  is  admissible  to  im- 
peach him,  as  in  the  case  of  other  witnesses."^  It  is  now  well  settled 
in  most  jurisdictions,  contrary  to  some  of  the  older  decisions,  that 
evidence  of  good  character  is  admissible  and  entitled  to  consideration 
on  the  question  of  guilt  along  with  the  other  evidence,  not  only  in 
doubtful  cases,  or  cases  in  which  the  other  evidence  is  of  itself  contra- 
dictory or  unconvincing,  but  also  in  all  proper  cases,  no  matter  whether 
the  other  evidence  in  and  of  itself  is  apparently  conclusive  or  incon- 
clusive.®* 


ties  cited  in   last  note  to  this  sec- 
tion. 

«» Ormsby  v.  People,  53  N.  Y.  472 ; 
Ackley  v.  People,  9  Barb.  (N.  Y.) 
609;  State  v.  Dockstader,  42  Iowa 
436;  State  v.  Upham.  38  Me.  261; 
State  V.  O'Neal,  7  Ired.  L.  (N.  Car.) 
251;  see  also.  Vol.  I,  §  227;  People 
V.  Gleason,  122  Cal.  370,  55  Pac.  123; 
Olive  V.  State.  11  Neb.  1,  7  N.  W. 
444;  but  see.  State  v.  Kabrich,  39 
Iowa  277;  State  v.  McAllister,  24 
Me.  139. 

"=  People  v.  Shea,  147  N.  Y.  78,  41 
N.  E.  508;  People  v.  White,  24 
Wend.  (N.  Y.)  524;  Rex  v.  Rowton, 
Leigh  &  C.  520;  Felsenthal  v.  State, 
30  Tex.  App.  675,  18  S.  W.  644; 
State  v.  Ellwood,  17  R.  I.  763,  24 
Atl.  782;  State  v.  Creson,  38  Mo. 
372;  Carter  v.  State,  36  Neb.  481,  54 
N.  W.  853;  State  v.  Thurtell,  29 
Kans.  148;  Maxwell  v.  State,  (Tex. 
Cr.  App.)  78  S.  W.  516;  Fletcher  v. 
State,  49  Ind.  124;  Drew  v.  State, 
124  Ind.  9,  23  N.  E.  1098;  Under- 
bill Cr.  Ev.,  §  78;  Wharton  Cr.  Bv., 
§  64,  et  seq. 

"Vol.  II,  §§  972,  978,  981-988;  Mc- 
Donald V.  Commonwealth,  86  Ky.  10, 
4  S.  W.  687;  People  v.  McKane,  143 


N.  Y.  455.  38  N.  E.  950;  Cluck  v. 
State,  40  Ind.  263;  Felsenthal  v. 
State,  30  Tex.  App.  675,  18  S.  W. 
644;  Commonwealth  v.  Hardy,  2 
Mass.  303.  Or  where  character  is  in 
issue  under  the  substantive  law. 
Vol.  I,  §  168,  and  especially  note 
143. 

'^  Kee  V.  State,  28  Ark.  155 ;  Scott 
V.  State,  105  Ala.  57,  16  So.  925,  53 
Am.  St.  100;  People  v.  Stewart,  28 
Cal.  395;  People  v.  Mead,  50  Mich. 
233,  15  N.  W\  95;  People  v.  Van 
Dam,  107  Mich.  425,  65  N.  W.  277; 
State  V.  Sloan.  22  Mont.  283,  56  Pac. 
364;  Edgington  v.  United  States, 
164  U.  S.  361,  17  Sup.  Ct.  72;  Hol- 
land V.  State,  131  Ind.  568,  31  N.  E. 
359;  Kistler  v.  State,  54  Ind.  400; 
State  V.  Murphy,  118  Mo.  7,  25  S. 
W.  95;  State  v.  Holmes.  65  Minn. 
230,  68  N.  W.  11;  Harrington  v. 
State,  19  Ohio  St.  264;  State  v.  Rod- 
man, 62  Iowa  456,  17  N.  W.  663; 
Hanney  v.  Commonwealth,  116  Pa. 
St.  322,  9  Atl.  339;  State  v.  Lep- 
pere,  66  Wis.  355,  28  N.  W.  202; 
Bacon  v.  State,  22  Fla.  51;  Redd  v. 
State,  99  Ga.  210.  25  S.  E.  268;  Com- 
monwealth v.  Leonard,  140  Mass. 
473,  4  N.  E.  96;  Lee  v.  State.  2  Tex. 


§§  2722,  2723.]     general  principles  and  rules.  28 

§  2722.  Character  of  others. — In  some  instances  the  accused  may 
not  only  introduce  evidence  of  his  own  good  character  but  also  of  the 
bad  character  in  certain  respects  of  the  prosecuting  witness  or  party 
upon  whom  the  crime  is  charged  to  have  been  committed."^  As  a 
general  rule,  however,  the  character  of  the  prosecutor  or  of  others  is 
not  in  issue  and  evidence  thereof  is  ordinarily  incompetent  except 
where  it  is  used  to  impeach  a  witness.  So,  evidence  of  the  bad  char- 
acter of  the  associates  of  the  accused,  or  of  other  third  persons  is,  ordi- 
narily, irrelevant  and  inadmissible.'"'  But  there  are  exceptional  cases 
in  which  the  character  or  bad  repute  of  third  persons  may  be  shown." 
This  subject,  however,  has  already  been  sufficiently  treated.^^ 

§  2723.  Conduct  indicating  consciousness  of  guilt. — It  has  been 
laid  down  as  a  general  rule  that  evidence  of  circumstances,  which  are 
part  of  a  person's  behavior  subsequent  to  an  event  which  it  is 
alleged  or  suspected  he  is  connected  with  or  implicated  in,  are  rele- 
vant if  the  circumstances  are  such  as  would  be  natural  and  usual, 
assuming  the  connection  or  implication  to  exist.  And  sometimes, 
but  not  universally,  evidence  of  actions  and  circumstances,  incon- 
sistent with  such  an  assumption,  is  relevant  as  a  basis  for  an  infer- 
ence that  the  person  accused  or  suspected  did  not  participate  in  the 
event.     Under  these  rules  evidence  will  be  received  to  prove  or  dis- 

App.  338;   State  v.  Pucca,   (Del.)   55  400,  25  N.  E.  457;    State  v.  Staton, 

AtL  831.  114  N.  Car.  813,  19  S.  E.  96;   Omer 

""*  See,  Vol.   I,   §  170;    also,  People  v.  Commonwealth,  95  Ky.  353,  25  S 

V.   Johnson.    106    Cal.    289,   39    Pac.  W.  594;   State  v.  Rose,  47  Minn.  47, 

622    (character    of    complainant    in  49  N.  W.  404. 

rape  case) ;  State  v.  Johnson,  28  Vt.  °'  See,  Commonwealth  v.  Gray,  129 
514  (game);  Rex  v.  Ryan,  2  Cox  Cr.  Mass.  474;  Commonwealth  v.  Gan- 
Cas.  115;  Rex  v.  Clarke,  2  Starkie  nett,  1  Allen  (Mass.)  7;  State  v. 
214;  Brown  v.  State,  72  Miss.  95,  Boardman,  64  Me.  523;  Winslow  v. 
16  So.  202;  Commonwealth  v.  Har-  State,  5  Ind.  App.  306,  317,  32  N. 
ris,  131  Mass.  336;  State  v.  Duffey,  E.  98  (in  dissenting  opinion); 
128  Mo.  549.  31  S.  W.  98;  People  v.  Sparks  v.  State,  59  Ala.  82;  Clem- 
McLean,  71  Mich.  310,  38  N.  W.  entine  v.  State.  14  Mo.  112;  John- 
917;  Brown  v.  State,  72  Md.  468,  20  son  v.  State,  28  Tex.  App.  562,  13 
Atl.'  186;  Williams  v.  Fambro,  30  S.  W.  1005;  State  v.  Toombs,  79 
Ga.  233  (quarrelsome  character  of  Iowa  741,  45  N.  W.  300;  State  v. 
deceased  in  homicide  case) ;  Com-  Hendricks,  15  Mont.  194,  39  Pac.  93, 
monwealth  v.  Hoskins,  18  Ky.  L.  R.  48  Am.  St.  666. 
59,  35  S.  W.  284  (same).  "  See,  Vol.  I,  §§  168.  169.  170.  171, 

«"  See,  State  v.  Beaty,  62  Kans.  266,  176. 
62  Pac.  658;  Walls  v.  State,  125  Ind. 


29 


CONDUCT    SHOWIXG    CONSCIOUSNESS    OF   GUILT.         [§    2723. 


prove  facts  or  circumstances  which  indicate  a  consciousness  of  guilt 
on  the  part  of  the  accused,  existing  after  the  crime  with  which  he  is 
charged  was  committed.  His  conduct  and  general  demeanor,  his 
language,  oral  or  written,  and  his  mental  and  physical  attitude  and 
relations  toward  the  crime,  or  his  actions  in  the  presence  of  those 
who  discovered  it,  or  who  are  engaged  in  detecting  its  perpetrator,  are 
relevant."""  But,  while  such  evidence  is  not  required  to  relate  to 
facts  contemporaneous  with  the  commission  of  the  alleged  crime,  or 
strictly  part  of  the  res  gestae,  the  time  and  circumstances  must  not 
be  so  remote  as  to  furnish  no  fair  inference  of  consciousness  of 
guilt.^°°  False  testimony  or  information  concerning  himself  or  his 
v/hereabouts  and  actions  about  the  time  of  the  commission  of  the 
crime,^"^  and  the  fabrication  or  suppression  of  evidence,^"-  are  ex- 
amples of  matters  that  may  usually  l)c  shown  under  the  general  rule. 
So,  evidence  of  nervousness,  excitement  and  fear  exhibited  by  the 
accused,^"^  or  of  his  conduct  and  demeanor  in  any  respect  tending 
to  show  consciousness  of  guilt,^°*  is  admissible  within  proper  limits. 
And  even  silence  under  accusation  of  guilt  under  such  circumstances 
that  an  innocent  man  would  usually  speak,  may  be  shown  in  evi- 


"  Underbill  Cr.  Ev.,  §  115,  citing, 
McAdory  v.  State,  62  Ala.  154;  Peo- 
ple V.  Stanley,  47  Cal.  113;  People 
T.  Welsh.  63  Cal.  167;  State  v.  Hill, 
134  Mo.  663,  36  S.  W.  223. 

i°»  State  V.  Baldwin,  36  Kans.  1, 
12  Pac.  318. 

^"  Hays  v.  State.  40  Md.  633;  State 
T.  Bishop,  98  N.  Car.  773,  4  S.  E. 
357;  State  v.  Broiighton,  7  Ired.  L. 
(N.  Car.)  96;  Lovett  v.  State,  60 
Ga.  257;  State  v.  Williams,  66  Iowa 
573,  24  N.  W.  52;  State  v.  Bradley, 
64  Vt.  466.  24  Atl.  1053;  Cathcart 
T.  Commonwealth.  37  Pa.  St.  108; 
Hicks  v.  State,  99  Ala.  169,  13  So. 
375;  Hamilton  v.  State,  62  Ark. 
543.  36  S.  W.  1054;  see  also.  Com- 
monwealth v.  Trefethen,  157  Mass. 
180.  31  N.  E.  961;  Wilson  v.  United 
States,  162  U.  S.  613,  16  Sup.  Ct. 
895. 

'"See,  Vol.  I,  §§  94.  226;  see  also. 


People  v.  Marion.  29  Mich.  31;  Col. 
lins  V.  Commonwealth,  12  Bush 
(Ky.)  271;  Conway  v.  State,  118 
Ind.  482,  21  N.  E.  285;  Turner  v. 
State.  102  Ind.  425,  1  N.  E.  869; 
Keesier  v.  State,  154  Ind.  242,  56 
N.  E.  232;  Williams  v.  State.  22 
Tex.  App.  497,  4  S.  W.  64. 

'"^Gilford  V.  State.  (Tex.  Cr. 
App.)  78  S.  W.  692;  Prince  v.  State, 
100  Ala.  144,  14  So.  409;  State  v. 
Ward.  61  Vt.  153,  17  Atl.  483;  Lind- 
sey  V.  People,  63  N.  Y.  143;  State 
V.  Baldwin.  36  Kans.  1,  12  Pac.  318; 
Williams  v.  State.  (Ark.)  16  S.  W. 
816. 

""  See,  People  v.  O'Neill,  112  N.  Y. 
355,  19  N.  E.  796:  Greenfield  v.  Peo- 
ple. 85  N.  Y.  75;  Noftsinger  v.  State, 
7  Tex.  App.  301;  see  also.  State  v. 
De  Berry,  92  N.  Car.  800;  State  v. 
Soper.  16  Me.  293. 


2724.] 


GENERAL   PRINCIPLES    AND   RULES. 


30 


dence.^°^     But  the  accused  may,  of  course,  explain  his  silence  by 
proper  evidence.^"® 

§  2724.  Conduct  indicating  consciousness  of  guilt — Flight — Con- 
cealment.— Evidence  that  the  accused  fled  or  concealed  himself  to 
avoid  arrest  is  admissible  as  a  circumstance  to  be  considered  in  de- 
termining his  guilt  or  innocence.^"^  So,  also,  is  the  fact  that  he  re- 
sisted arrest"^  or  attacked  the  officers  with  deadly  weapons,""  or 
attempted  to  escape  after  he  was  arrested,  and  was  recaptured.^" 
But  such  acts  are  not,  of  course,  conclusive  evidence  that  defendant 
is  guilty  of  the  crime  for  which  he  is  on  trial,"^  and  the  defendant 
has  a  right  to  offer  an  explanation  of  his  conduct,^^^  as,  for  instance, 
that  he  fled  to  escape  a  mob  which  threatened  his  life,"^  or  that  his 
friends  advised  him  to  leave,"*  or  the  like."^     Indeed,  the  better 


^"^Vol.  I,  §§  221,  230;  see  also, 
Commonwealth  v.  Brailey,  134  Mass. 
527;  State  v.  Suggs,  89  N.  Car.  527; 
State  V.  Howard,  102  Mo.  142,  14  S. 
W.  937;  Moore  v.  State,  96  Tenn. 
209,  33  S.  W.  1046;  State  v.  Magoon, 
68  Vt.  289,  35  Atl.  310;  Joiner  v. 
State,  119  Ga.  315,  46  S.  E.  412. 

^»«  State  V.  Flanagin,  25  Ark.  92; 
Commonwealth  v.  Kenney,  12  Mete. 
(Mass.)  235;  People  v.  Willett,  92 
N.  Y.  29;  Kelley  v.  People,  55  N.  Y. 
565;  Bell  v.  State,  93  Ga.  557,  19  S. 
E.  244;  Slattery  v.  People,  76  111. 
217;  Loggins  v.  State,  8  Tex.  App. 
434. 

«' Allen  V.  United  States,  164  U. 
S.  492,  17  Sup.  Ct.  154;  Waybright 
V.  State,  56  Ind.  122;  Batten  v. 
State,  80  Ind.  394;  State  v.  Moore, 
101  Mo.  316,  14  S.  W.  182;  State  v. 
Foster,  136  Mo.  653,  38  S.  W.  721; 
Commonwealth  v.  Brigham,  147 
Mass.  414,  18  N.  E.  167;  Common- 
wealth V.  McMahon,  145  Pa.  St.  413, 
22  Atl.  971;  Ryan  v.  State,  83  Wis. 
486,  53  N.  W.  836;  Vol.  I,  §§  156, 
165. 

^"'Shepherd  v.  State,  64  Ind.  43; 
Anderson  v.  State,  147  Ind.  445,  46 


N.  E.  901;  State  v.  Taylor,  118  Mo. 
153,  24  S.  W.  449.  So,  that  he 
threatened  to  kill  any  one  who  at- 
tempted to  arrest  him,  or  would 
die  before  he  would  be  taken.  Horn 
V.  State,  102  Ala.  144,  15  So.  278; 
Ross  V.  State,  74  Ala.  532. 

"» Anderson  v.  State,  147  Ind.  445, 
46  N.  E.  901. 

""Hittner  v.  State,  19  Ind.  48; 
Anderson  v.  State,  147  Ind.  445,  46 
N.  E.  901. 

"1  State  V.  Mallon,  75  Mo.  355; 
Waybright  v.  State,  56  Ind.  122; 
Hickory  v.  United  States,  160  U.  S. 
408,  16  Sup.  Ct.  327. 

"=  Evans  v.  State,  (Tex.  Cr.  App.) 
76  S.  W.  467;  State  v.  Potter,  108 
Mo.  424,  22  S.  W.  89;  State  r.  Bar- 
ham,  82  Mo.  67. 

"^Batten  v.  State,  80  Ind.  394; 
Evans  v.  State,  (Tex.  Cr.  App.)  76 
S.  W.  467;  State  v.  Brooks,  92  Mo. 
542,  5  S.  W.  257. 

"*  State  V.  Moncla,  39  La.  Ann. 
868,  2  So.  814;  Waybright  v.  State, 
56  Ind.  122;  Walters  v.  State,  17 
Tex.  App.  226. 

"^See,  State  v.  Phillips,  24  Mo. 
475;    State   v.   Baker,    (Mo.)    19   S. 


31  POSSESSION    OF    STOLEX    I'KOPERTY.  [§    2725. 

rule  is  that  mere  flight  or  the  like,  does  not  of  itself,  apart  from  the 
motive,  necessarily  raise  any  presumption  of  guilt,  but  the  motive 
may  be  inferred  from  circumstances,  and  flight  to  avoid  arrest  or  im- 
prisonment is  a  circumstance  to  be  considered  by  the  jury  along  with 
the  reason  that  prompted  it  and  together  with  the  other  evidence  in 
the  case  and  may  lead  to  the  inference  of  guilt.""  And  evidence 
tending  to  show  that  subsequent  to  the  commission  of  the  offense  the 
defendant  evinced  a  desire  to  conceal  the  crime  or  shield  the  crimi- 
nal has  been  held  incompetent  in  the  absence  of  any  affirmative  evi- 
dence tending  to  show  that  the  defendant  participated  in  the  of- 
fense."^ But,  in  general,  evidence  of  a  disposition  to  conceal  the 
crime  and  stop  public  inquiry  is  admissible.^^^  On  the  other  hand, 
the  fact  that  the  defendant  did  not  flee,^^''  or  that  he  voluntarily  sur- 
rendered himself, ^2"  is  usually  inadmissible  and  cannot  be  considered 
as  showing  innocence.  So,  it  is  inadmissible  for  him  to  show  for 
that  purpose  that,  after  being  put  in  jail,  he  had  an  opportunity  to 
escape  and  declined  to  do  so.^^^ 

§  2725.  Conduct  indicating  consciousness  of  guilt — Recent  pos- 
session of  stolen  property. — There  is  some  conflict  among  the  author- 
ities upon  the  subject  of  the  admissibility  and  effect  of  evidence  of 
the  possession  of  stolen  goods. ^^^  The  true  rule,  however,  is  that 
evidence  of  the  recent  unexplained  possession  of  stolen  goods  by  the 
accused  is  admissible  and  may  justify  the  inference  of  guilt  ;^-^  but 

W.  222;   Lewallen  v.  State,  33  Tex.         '="  State  v.  Marshall,  115  Mo.  383, 

Cr.  App.  412,  26  S.  W.  832;   Elmore  22   S.  W.   452;    Walker  v.   State,  13 

V.  State,  98  Ala.  12,  13  So.  427.  Tex.  App.  618;  People  v.  Cleveland, 

"'Ryan  v.  People,  79  N.  Y.  593,  19  107  Mich.  367,  65  N.  W.  216. 
Hun  (N.  Y.)  188;  Hickory  v.  United         "^  State  v.  Bickle,  53  W.  Va.  597, 

States,   160   U.    S.    408,   16    Sup.   Ct.  45   S.  E.   917;    State  v.  Wilkins,   66 

327;    Alberty  v.  United    States,   162  Vt.  1.  28  Atl.  323;  Johnston  v.  State, 

U.  S.  499,  16  Sup.  Ct.  864;  see  also,  94    Ala.    35,    10    So.    667;    People   v. 

Thomas  v.  State,  109  Ala.  25,  19  So.  Montgomery,  53  Cal.  576;   People  v. 

403;   State  v.  Rodman,  62  Iowa  456,  Rathbun,  21  Wend.  (N.  Y.)  509. 
17  N.  W.  663;    State  v.  Brooks,  92         "=  Compare,    for    instance.    People 

Mo.  542,  5  S.  W.  257;  Fox  v.  People,  v.   Gordon,   40   Mich.   716;    Knicker- 

95  111.  71.  bocker  v.   People,   43   N.  Y.   177,  at 

"^  Harper  v.   State,   83   Miss.    402,  opposite  extremes. 
35  So.  572.  1"  Considine  v.   United   States,   50 

"« Weightnovel  v.  State,   (Fla.)   35  C.  C.  A.  272,  112  Fed.  342;    Wilson 

So.  856.  V.  United  States,  162  U.  S.   613.  16 

*"  Walker   v.    State.    139    Ala.    56,  Sup.  Ct.  895;  People  v.  Wong  Chong 

35  So.  1011.  Suey,    110    Cal.    117,    42    Pac.    420; 


2725.] 


GENERAL    PRINCIPLES    AND    RULES. 


32 


it  does  not  necessarily  raise  a  presumption  of  guilt  in  the  true  sense, 
and  the  rule,  stated  as  a  presumption  at  least,  does  not  apply  where 
the  circumstances  under  which  the  possession  was  acquired  are 
proved. ^^*  As  said  in  a  recent  case:  "The  law  does  not  attach  a 
'presumption  of  guilt'  to  any  given  circumstance,  nor  does  it  require 
the  accused  to  'overcome  the  presumption  thereby  raised,'  in  order  to 
be  entitled  to  an  acquittal.  What  the  law  does  say  is  that  the  fact  of 
possession  is  evidence  of  guilt  upon  which  a  conviction  may  properly 
be  returned,  unless  the  other  facts  or  circumstances  developed  be  such 
that,  notwithstanding  the  recent  possession,  the  jury  still  entertains 
a  reasonable  doubt  of  the  defendant's  participation  in  the  crime.  It 
is  in  this  sense  that  the  words  'presumption'  and  'prima  facie  evi- 
dence' must  be  understood  when  employed  in  this  connection."^-^ 
The  possession  should  not  be  too  remote,^-*'  although  if  it  has  any 
probative  value  it  is  generally  for  the  jury  to  say  what  weight  it 
shall  be  given  in  the  particular  case,  and  it  must  be  personal  and  ex- 
clusive rather  than  merely  constructive.^-^     So,  the  defendant  may 


Branson  v.  Commonwealth,  92  Ky. 
330,  17  S.  W.  1019;  Blaker  v.  State, 
130  Ind.  203,  29  N.  E.  1077;  Gravitt 
V.  State,  114  Ga.  841,  40  S.  E.  1003. 
88  Am.  St.  63;  King  v.  State,  99  Ga. 
686,  26  S.  E.  480;  State  v.  Conway, 
56  Kans.  682,  44  Pac.  627,  State  v. 
Frahm,  73  Iowa  355,  35  N.  W.  451; 
Methard  v.  State,  19  Ohio  St.  363; 
Graveley  v.  Commonwealth,  86  Va. 
396,  10  S.  E.  431;  Metz  v.  State,  46 
Neb.  547,  65  N.  W.  190;  Dobson  v. 
State,  46  Neb.  250,  64  N.  W.  956; 
Smith  V.  People,  103  111.  82;  Magee 
V.  People,  139  111.  138,  28  N.  E.  1077; 
Vol.  I,  §  156. 

^=*  State  V.  Spencer,  (Del.)  53  Atl. 
337;  State  v.  Freedman,  3  Pen. 
(Del.)  403,  53  Atl.  356;  Roberts  v. 
State,  11  Wyo.  66,  70  Pac.  803;  see 
also,  State  v.  Hodge,  50  N.  H.  510; 
Wilson  V.  United  States,  162  U.  S. 
613,  16  Sup.  Ct.  895;  Smith  v.  State, 
133  Ala.  145,  31  So.  806,  91  Am.  St. 
21,  and  note;  Hunt  v.  Common- 
wealth, 13  Gratt.  (Va.)  757,  70  Am. 
Dec.    443,    and    notes;     Gravitt    v. 


State,  114  Ga.  841.  40  S.  E.  1003,  S8 
Am.  St.  63. 

"=>  State  V.  Brady,  121  Iowa  561, 
97  N.  W.  62,  64,  citing,  Smith  v. 
State,'  58  Ind.  340;  Ingalls  v.  State, 
48  Wis.  647,  4  N.  W.  785;  Common- 
wealth v.  Randall,  119  Mass.  107; 
Smith  V.  People,  103  111.  82;  Bran- 
son V.  Commonwealth,  92  Ky.  330, 
17  S.  W.  1019;  People  v.  Tithering- 
ton,  59  Cal.  598;  see  also,  Gravitt 
V.  State,  114  Ga.  841.  40  S.  E.  1003, 
88  Am.  St.  63.  explaining  prior 
Georgia  cases  in  which  the  term 
"presumption"  had  been  used. 

"<=  See,  Goldstein  v.  People,  82  N. 
Y.  231;  State  v.  Castor,  93  Mo.  242, 
5  S.  W.  906;  Davis  v.  State.  50  Miss. 
86;  Jones  v.  State,  26  Miss.  247; 
White  V.  State.  72  Ala.  195;  Rex  v. 
Adams,  3  Car.  &  P.  600;  Rex  v. 
Cruttenden,  6  Jur.  267. 

'-'State  V.  Castor,  93  Mo.  242,  5 
S.  W.  906;  State  v.  Lackland,  136 
Mo.  26,  37  S.  W.  812;  People  v.  Wil- 
son, 151  N.  Y.  403,  45  N.  E.  862; 
State  V.  Deyoe,  97  Iowa  744,  66  N. 


33  DEFENSES.  [§   2726. 

explain  it.^^^  Thus,  he  may  show  that  he  hought  the  property/^^ 
or  otherwise  give  such  an  explanation  as  to  create  a  reasonable  doubt 
of  his  guilt.""  Further  consideration  of  this  subject  in  this  connec- 
tion, however,  is  unnecessary,  as  it  will  be  treated  in  connection  with 
particular  crimes,  such  as  burglary  and  larceny. 

§  2726.  Defenses. — Some  of  the  most  common  defenses,  such  as 
insanity,  drunkenness  and  the  like,  have  been  referred  to  in  this 
chapter  in  connection  with  criminal  capacity.  But,  they  as  well  as 
others,  such  as  alibi,  and  former  conviction  or  acquittal,  for  instance, 
will  be  treated  in  subsequent  sections.  Self-defense,  and  similar  de- 
fenses will  be  treated  in  chapters  on  crimes  in  prosecutions  for  which 
they  are  most  often  presented.^^^  It  is  the  purpose  in  this  section  to 
refer  only  to  a  few  instances  of  the  admissibility  of  evidence  in  de- 
fense. As  a  general  rule,  the  defendant  may  introduce  any  proper 
evidence  to  rebut  that  introduced  by  the  prosecution  and  tending  to 
show  that  no  crime  was  committed  or  that  he  is  not  guilty  of  the 
crime  charged.  For  this  purpose  he  may  even  show,  in  connection 
with  other  evidence,  at  least  where  the  evidence  tending  to  connect 
him  with  the  crime  is  wholly  circumstantial,  that  another  person  was 
capable  and  had  a  motive  and  was  in  a  situation  to  have  committed 
it.^^^  So,  he  may  generally  show  absence  of  motive  on  his  part,  or 
absence  of  the  requisite  criminal  intent  and  all  other  relevant  mat- 
ters admissible  in  defense  under  the  issues,  and  may  introduce  char- 
acter and  impeaching  evidence  under  rules  elsewhere  stated.  But 
ignorance  of  the  law  or  even  of  a  state  of  facts  which  the  accused 

W.  733;  Funderburg  V.  State,   (Tex.)      22  Tex.  App.  563,  3  S.  W.  741;  Clark 

34  S.  W.  613.  V.  State.  30  Tex.  App.  402,  17  S.  W. 
*=' Harris   v.    State.    17    Tex.   App.     942. 

177;    Lewis  v.   State.   29   Tex.  App.  "^  See   also,   elaborate   note   in    74 

201,  14  S.  W.  1008;  Hall  v.  State,  34  Am.  St.  707-717. 

Ga.  208;  Chambers  v.  State,  62  Miss.  '==  Leonard   v.   Territory,  2  Wash. 

108;    State  v.  Owsley,  111  Mo.   450,  Ter.  381,  7  Pac.  872;  Carlton  v.  Peo- 

20  S.  W.  194.  pie,  150  111.  181,  37  N.  E.  244,  41  Am. 

^-^  Jones  V.  People,  12  111.  259.  St.  346   (but  he  cannot  do  it  by  ad- 

""  State  V.  Cross,  95  Iowa  629,  64  missions  or  confessions  of  a  third 

N.   W.    614;    State   v.    Peterson,    67  person  not  under  oath) ;   Dubose  v. 

Iowa  564,  25  N.  W.  780;    Crawford  State,  10  Tex.  App.  230,  246;    State 

V.    State.   113   Ala.    661,   21   So.    64;  v.  Johnson,  31  La.  Ann.  368;    State 

State  V.  Moore,  101  Mo.  316,  14  S.  v.    Edwards,    71    Mo.    312;    Dean    v. 

W.   182;    Blaker  v.   State,   130   Ind.  Commonwealth,  32  Gratt.  (Va.)  912. 

203,  29  N.  E.  1077;    Hart  v.   State, 
Vol.  4  Elliott  Ev. — 3 


§  2727.] 


GENERAL   PRINCIPLES    AND   RULES. 


34 


is  bound  to  know  under  the  law,  as  a  rule,  constitutes  no  defense  or 
justification  for  a  criminal  offense. ^^^  A  private  individual  cannot 
license  the  commission  of  a  crime,  and  consent  of  the  person  injured 
is  therefore  no  defense,  as  a  general  rule,  to  a  crime  against  the  pub- 
lic,^^*  nor,  if  the  offense  is  voluntarily  committed  by  the  accused,  is 
the  mere  fact  that  decoy  letters  or  the  like  were  used  a  good  de- 
fense ;^^°  but  there  are  some  cases  as,  for  instance,  in  the  case  of 
larceny,  in  which  an  essential  element  of  the  crime  is  that  the  act 
should  be  committed  without  the  consent  of  the  injured  party.^^° 

§  2727.  Alibi. — Some  courts  hold  that  the  burden  of  proving  an 
alibi  is  upon  the  defendant,  in  accordance  with  the  rule  that  the 
burden  of  proof  is  always  upon  the  party  asserting  an  affirmative 
fact,  or  one  peculiarly  within  his  own  knowledge.^^^    Even  where  this 


"=  State  V.  Downs.  116  N.  Car. 
1064,  21  S.  E.  689;  Commonwealth 
V.  Weiss.  139  Pa.  St.  247,  21  Atl. 
10,  23  Am.  St.  182,  in  both  of  which 
cases  it  was  so  held  even  though  the 
act  was  under  the  advise  of  coun- 
sel; see  also,  Atkins  v.  State,  95 
Tenn.  474.  32  S.  W.  391;  Stow  v. 
Converse,  3  Conn.  325,  8  Am.  Dec. 
189;  State  v.  Williams.  36  S.  Car. 
493,  15  S.  B.  554;  State  v.  Sasse,  6 
S.  Dak.  212,  60  N.  W.  853,  55  Am. 
St.  834;  United  States  v.  Reder,  69 
Fed.  965;  but  compare,  State  v. 
Yeargan,  117  N.  Car.  706,  23  S.  E. 
153;  Stern  v.  State,  53  Ga.  229,  21 
Am.  R.  266;  Farrell  v.  State,  32 
Ohio  St.  456,  30  Am.  R.  614;  Lee  v. 
Lacey,  1  Cranch  (U.  S.)  263. 

13*  Commonwealth  v.  Snow,  116 
Mass.  47;  Newman  v.  People,  23 
Colo.  300,  47  Pac.  278;  People  v.  Lip- 
hardt,  105  Mich.  80,  62  N.  W.  1022; 
Reg.  V.  Alison.  8  Car.  &  P.  418. 

1=^  Grimm  v.  United  States,  156  U. 
S.  604,  15  Sup.  Ct.  470;  Price  v. 
United  States.  165  U.  S.  311,  17  Sup. 
Ct.  366;  Montgomery  v.  United 
States,  162  U.  S.  410,  16  Sup.  Ct. 
797;  Tripp  v.  Flanigan,  10  R.  I. 
128;    State    v.    Stickney,    53    Kans. 


308,  36  Pac.  714,  42  Am.  St.  285; 
State  V.  Hayes,  105  Mo.  76,  16  S. 
W.  514.  24  Am.  St.  360. 

"» State  V.  Hull,  33  Ore.  56,  54 
Pac.  159.  72  Am.  St.  694,  and  note; 
Zink  V.  People,  77  N.  Y.  114,  33  Am. 
R.  589;  State  v.  Adams,  115  N.  Car. 
775,  20  S.  E.  722;  Thompson  v.  State, 
18  Ind.  386,  81  Am.  Dec.  364-367. 
and  notes;  Allen  v.  State,  40  Ala. 
334,  91  Am.  Dec.  482,  483;  State  v. 
Cooper,  22  N.  J.  L.  52,  51  Am.  Dec. 
248;  State  v.  Beck.  1  Hill  L.  (S. 
Car.)  363,  26  Am.  Dec.  190  (no  as- 
sault and  battery  where  consent) ; 
Smith  v.  State.  12  Ohio  St.  466,  80 
Am.  Dec.  355  (same) ;  Love  v.  Peo- 
ple, 160  111.  501.  43  N.  E.  710;  Peo- 
ple v.  McCord,  76  Mich.  200.  42  N. 
W.  1106. 

'"  Holley  v.  State.  105  Ala.  100,  17 
So.  102;  State  v.  Thornton.  10  S. 
Dak.  349,  73  N.  W.  196,  41  L.  R.  A. 
530;  Carlton  v.  People,  150  111.  181, 
37  N.  E.  244,  41  Am.  St.  346;  Miles 
V.  State,  93  Ga.  117,  19  S.  E.  805. 
44  Am.  St.  140;  State  v.  Beasley, 
84  Iowa  83,  50  N.  W.  570;  State  v. 
Jennings,  81  Mo.  185,  51  Am.  R. 
236;  State  v.  Fenlason,  78  Me.  495, 
7  Atl.  385. 


36 


ALIBI. 


[§  272^ 


is  the  rule,  however,  it  is  generally  held  to  be  only  a  qualified  burden 
to  make  such  proof  as  will  create  or  raise  a  reasonable  doubt.  The 
jury  may  and  should  consider  defendant's  evidence  of  an  alibi  in  con- 
nection with  all  the  evidence  in  the  case;  and  the  better  rule  seems 
to  be,  no  matter  what  view  is  taken  as  to  the  burden  of  producing 
evidence,  that  the  state  is  required  to  convince  them  of  his  guilty 
participation  in  the  crime,  time  and  place  being  essential  ingredients 
in  this  participation,  beyond  a  reasonable  doubt  upon  all  the  evi- 
dence."® And  there  are  many  cases  in  which  it  is  said  that  the  bur- 
den does  not  shift  from  the  prosecution  even  where  an  alibi  is  re- 
lied on  as  a  defense.^^®    The  authorities  are  conflictinsr  as  to  whether 


''^  State  V.  Maher,  74  Iowa  77,  37 
N.  W.  2;  see  also,  State  v.  Conway, 
56  Kans.  682,  44  Pac.  627;  State  v. 
Harvey,  131  Mo.  339,  32  S.  W.  1110; 
State  V.  Lowry,  42  W.  Va.  205,  24 
S.  E.  561;  People  v.  Pichette,  111 
Mich.  461,  69  N.  W.  739;  Borrego  v. 
Territory,  8  N.  Mex.  446,  46  Pac. 
349;  Ackerson  v.  People,  124  111. 
563,  16  N.  E.  847.  849;  Hauser  v. 
People,  210  111.  253,  71  N.  E.  416; 
Ware  v.  State.  59  Ark.  379,  392,  27 
S.  W.  485;  Walters  v.  State,  39  Ohio 
St.  215,  217;  Chappel  v.  State,  7 
Coldw.  (Tenn.)  92;  State  v.  Ward, 
61  Vt.  153,  192,  17  Atl.  483;  Ben- 
nett V.  State,  30  Tex.  App.  341,  17 
S.  W.  545;  State  v.  Chee  Gong,  16 
Ore.  534,  538,  19  Pac.  607;  in  Watson 
V.  Commonwealth,  95  Pa.  St.  418, 
422,  it  is  said :  "An  alibi  is  as  much 
a  traverse  of  the  crime  charged  as 
any  other  defense,  and  proof  tend- 
ing to  establish  it,  though  not  clear, 
may,  with  other  facts  of  the  case, 
raise  a  reasonable  doubt  of  the 
guilt  of  the  accused.  When  the  evi- 
dence is  so  imperfect  as  not  to  sat- 
isfy the  minds  of  the  jury  they  will 
not  find  the  fact.  Where  the  com- 
monwealth rests  upon  positive  and 
undoubted  proof  of  the  prisoner's 
gnilt,  it  should  not  be  overcome  by 
less  than   full,   clear   and   satisfac- 


tory evidence  of  the  alleged  alibi. 
But  the  evidence  tending  to  estab- 
lish an  alibi,  though  not  sufficient 
to  work  an  acquittal,  should  not  be 
excluded  from  the  case,  for  the  bur- 
den of  proof  never  shifts,  but  rests 
upon  the  commonwealth  through- 
out, upon  all  the  evidence  given  in 
the  cause,  taken  together  to  con- 
vince the  jury,  beyond  a  reasonable 
doubt,  of  the  prisoner's  guilt."  The 
whole  subject  is  considered  and  the 
authorities  are  reviewed  in  the 
elaborate  note  to  State  v.  Thorn- 
ton, 41  L.  R.  A.  530-543. 

^See,  State  v.  Freeman,  100  N. 
Car.  429,  5  S.  E.  921;  McNamara  v. 
People,  24  Colo.  61,  48  Pac.  541; 
Shultz  V.  Territory,  (Ariz.)  52  Pac. 
352;  State  v.  Child,  40  Kans.  482. 
20  Pac.  275;  Parker  v.  State,  136 
Ind.  284,  292,  35  N.  E.  1105;  Walters 
V.  State,  39  Ohio  St.  215;  State  v. 
Chee  Gong,  16  Ore.  534,  19  Pac.  607; 
State  V.  McClellan,  23  Mont.  532, 
59  Pac.  924,  75  Am.  St.  558,  and 
note.  The  attempt  and  failure  to 
prove  an  alibi  is  not  an  admission 
of  the  crime,  and  raises  no  presump- 
tion that  the  accused  was  at  the 
place  when  and  where  it  was  com- 
mitted. Toler  V.  State,  16  Ohio  St. 
583. 


§    2728.]  GENERAL   PRINCIPLES   AND   RULES.  36 

it  is  necessary  in  order  to  establish  an  alibi,  that  the  entire  time  dur- 
ing which  the  offense  was  committed  should  be  covered  so  as  to  ex- 
clude the  possibility  of  the  defendant's  presence,  but  it  is  believed 
that  it  is  not  absolutely  essential  in  all  cases,  at  least  to  the  admissi- 
bility of  the  evidence,  that  it  should  cover  the  entire  time  during 
which  the  crime  may  have  been  committed,  and  show  that  it  was  ab- 
solutely impossible  that  he  could  have  been  present.^*" 

§  2728.  Insanity. — The  views  of  the  authors  as  to  the  effect  of 
the  presumption  of  innocence,  on  the  one  hand,  and  that  of  sanity 
on  the  other,  and  as  to  the  burden  of  proof  where  insanity  is  relied 
on  as  a  defense,  have  already  been  presented."^  The  following  in- 
telligent treatment  of  the  subject  by  another  writer  may  serve  to 
throw  additional  light  upon  it.  "The  authorities  are  in  conflict  on 
the  question  upon  whom  lies  the  burden  of  proving  the  sanity  or  in- 
sanity of  the  defendant.  The  decisions  range  all  the  way  from  the 
statement  that  the  prosecution  must  prove  the  sanity  of  the  accused 
beyond  a  reasonable  doubt  to  the  proposition  that  the  defendant  must 
establish  his  insanity  in  an  equally  positive  manner.  That  the  bur- 
den is  upon  the  defendant  of  proving  his  insanity  beyond  a  reason- 
able doubt  is  probably  not  the  law  anywhere  at  the  present  day,  with 
the  exception  of  Louisiana.""  There  are,  however,  three  statements 
of  the  rule  concerning  the  burden  of  proof  which  are  found  in  the 
reported  cases.  One  is  that  the  burden  of  proof  is  on  the  state  to 
establish  the  sanity  of  the  accused  beyond  a  reasonable  doubt."^  The 
legal  presumption  that  every  man  is  sane,  however,  ob^dates  the  neces- 
sity of  introducing  any  evidence  at  all  until  this  presumption  is 
overthrown.  When  this  occurs,  the  state  must,  in  some  Jurisdictions, 
prove  sanity  beyond  a  reasonable  doubt.  The  conflict  in  the  cases, 
as  we  shall  see,  relates  to  when  this  legal  presumption  of  sanity  is 
sufficiently  overthrown  or  weakened  as  to  render  it  not  conclusive. 

""See,  West  v.  State,  48  Ind.  483;  thorities,  see,  41  L,  R.  A.  C41-543, 
Beavers  v.  State,  103  Ala.  36,  15  So.  note. 
616;   Pollard  v.  State,  53  Miss.  410.  "'Vol.  I,  §§  126,  139. 
24  Am.  R.  703;    Henry  v.  State,  51  "=  State  v.  DeRance,  34  La.  Ann. 
Neb.  149,  70  N.  W.   924;    Stuart  v.  186.  44  Am.  R.  426;   State  v.  Clem- 
People,  42  Mich.  255,  3  N.  W.  863;  ents,  47  La.  Ann.  1088,  17  So.  502. 
but     see.     Briceland     v.     Common-  '« Ford  v.  State,  73  Miss.  734,  19 
wealth.  74  Pa.  St.  463;  Klein  v.  Peo-  So.  665;  Davis  v.  United  States,  160 
pie,  113  111.  596;    Johnson  v.  State.  U.  S.  469,  16  Sup.  Ct.  353;  Hopps  v. 
59  Ga.  142;  Barr  v.  People,  30  Colo.  People.  31  111.  385,  83  Am.  Dec.  231. 
522    71  Pac.  392;   for  review  of  au- 


37  INSANITY.  [§   2728. 

Another  and  perhaps  the  largest  line  of  authorities  states  the  rule 
to  be  that  the  burden  is  on  the  defendant  to  prove  his  insanity  by  a 
preponderance  of  the  evidence.^*''  Still  a  third  line  of  cases  hold 
that  if  the  jury  have  a  reasonable  doubt  as  to  whether  the  accused 
is  sane  or  not  they  must  acquit,  and  while  the  burden  rests  upon  the 
defendant  of  introducing  evidence  to  raise  this  doubt,  such  evidence 
need  not  preponderate,  but  is  ample  if  it  is  sufficient  to  produce  a 
reasonable  doubt  in  the  minds  of  the  jury.^*^  All  the  authorities  start 
with  two  fundamental  propositions  upon  which  they  are  in  complete 
harmony:  (1)  That  the  burden  is  on  the  prosecution  to  prove  be- 
yond a  reasonable  doubt  that  the  defendant  committed  the  crime ;  and 
(2)  the  law  presumes  every  man  to  be  sane.  The  conflict  in  the  de- 
cision arises  by  reason  of  the  fact  that  the  courts  differ  in  their 
opinion  as  to  how  much  evidence  is  necessary  to  overthrow  this  origi- 
nal presumption  of  sanity,  and  as  to  what  quantum  of  evidence  is 
sufficient  to  enable  the  court  to  say  to  the  jury  that  the  burden  of 
proving  the  crime  beyond  a  reasonable  doubt  has  been  successfully 
borne.  The  burden  is  upon  the  state  to  establish  the  guilt  of  the  de- 
fendant beyond  a  reasonable  doubt.  To  constitute  a  crime  there  must 
coexist  a  criminal  act  with  a  criminal  intent.  To  prove  the  intent 
without  the  act  is  as  equally  futile  to  establish  criminal  liability  as 
to  prove  the  act  without  the  intent.  Both  are  essential.  And  if  the 
defendant  was  so  insane  as  to  be  incapable  of  having  any  intent  to 

'"Graves  v.  State,  45  N.  J.  L.  347,  Bell,  49  Cal.  485;  People  v.  Allendsr, 

46  Am.  R.  778;   State  v.  Redemeier,  117   Cal.    81,    48    Pac.    1014;    People 

71  Mo.  173,  36  Am.  R.  462;  Ortwein  v.  Hettlck,  126  Cal.  425,  58  Pac.  918; 

V.  Commonwealth,  76  Pa.  St.  414,  18  State  v.  Parks,  93  Me.  208,  44  Atl. 

Am.   R.    420;    Parsons  v.   State,   81  899;   Carlisle  v.  State,   (Tex.)   56  S. 

Ala.  577,  2  So.  854,  60  Am.  R.  193;  W.  365;    State  v.  Larkins,  5  Idaho 

Commonwealth   v.    Rogers,    7    Mete.  200,  47  Pac.  945. 

(Mass.)  500,  41  Am.  Dec.  458;  State         "=  Hopps  v.  People,  31  111.  385,  83 

V.  McCoy,  34  Mo.  531,  86  Am.  Dec.  Am.  Dec.  231;    State  v.  Bartlett,  43 

121;    Kelch    v.    State,    55    Ohio    St.  N.   H.   224,   80   Am.   Dec.   154;    Polk 

146,   45    N.    E.    6,    60    Am.    St.    680;  v.   State.   19   Ind.   170,   81  Am.   Dec. 

Ryder  v.   State,  100  Ga.   528,  28   S.  382;    Chase  v.    People,   40   111.    352; 

E.    246,    62    Am.    St.    334;    State    v.  Guetig  v.  State,  66  Ind.  94,  32  Am. 

Trout,  74  Iowa  545.  38   N.  W.   405,  R.  99;  Plake  v.  State,  121  Ind.  433, 

7  Am.  St.  499;    State  v.  Alexander,  23  N.  E.  273.  16  Am.  St.  408;  Dacey 

30  S.  Car.  74,  8  S.  E.  440,  14  Am.  St.  v.  People,  116  111.  555,  6  N.  E.  165; 

879;  Keener  v.  State,  97  Ga.  388,  24  Brotherton  v.  People,  75  N.  Y.  159; 

S.  E.  28;   State  v.  Wright,  134  Mo.  Dove    v.    State,    3    Heisk.    (Tenn.) 

404,  35  S.  W.  1145;  State  v.  Bell.  136  348. 
Mo.    120,    37    S.    W.    823:    People  v. 


§    2729.]  GENERAL    PRINCIPLES    AND   RULES.  38 

commit  the  crime,  he  has  not,  in  contemplation  of  law,  committed  any 
offense  for  which  he  can  be  held  responsible.  The  burden,  then,  is 
on  the  state  to  establish  both  of  these  conditions  of  guilt  beyond  a 
reasonable  doubt.  From  this  there  seems  to  us  but  one  logical  con- 
clusion, which  is,  that,  after  the  evidence  is  all  in,  and  the  case  is 
submitted  to  the  jury,  if  the  jury  have  any  reasonable  doubt  as  to  the 
sanity  of  the  accused  they  must  acquit.  The  question  is  not  open  to 
dispute  that  if  the  jury  had  a  reasonable  doubt  as  to  whether  the  de- 
fendant committed  the  act  or  not  they  must  acquit,  since  in  such  a 
case  the  state  has  not  proved  beyond  a  reasonable  doubt  that  the  de- 
fendant has  committed  the  act  with  which  he  is  charged.  In  reason, 
then,  why  should  not  the  jury  acquit  if  they  have  a  reasonable  doubt 
as  to  the  existence  of  the  other  question  of  guilt,  viz.,  a  mind  sane 
enough  to  be  capable  of  entertaining  a  criminal  intent?  Both  con- 
ditions are  essential  to  constitute  the  crime,  and  the  proof  requisite 
to  conviction  should  in  like  manner  be  tlie  same  in  both  cases.""* 

§  2729.  Intoxication. — It  is  often  said  that  intoxication  is  no  ex- 
cuse for  crime,  and,  as  a  general  rule,  it  is  true  that  voluntary  drunk- 
enness is  not  a  good  defense."^  But  the  intoxication  or  use  of  liquor 
may  have  been  so  long  continued  as  to  have  affected  the  mind  and  to 
have  rendered  the  accused  insane.  In  such  a  case,  evidence  thereof 
is  usually  relevant,  but  it  is  the  insanity  rather  than  its  cause  that 
constitutes  the  defense.^ *^  So,  where  a  specific  intent  or  premedita- 
tion is  essential  to  constitute  the  crime  charged,  evidence  of  intoxi- 
cation is  often  relevant  and  admissible  to  show  that  the  accused 
could  not  have  entertained  such  intent"'  or  formed  such  premeditated 

^"Knights  V.   State,  58  Neb.   225.  Comm.  25,  26;    note  in  31  Cent.  L. 

78  N.  W.   508,  76  Am.   St.   78,   and  J.  113. 
note.  "'People  v.  Travers,  88  Cal.  233, 

'"Goodwin  v.  State,  96  Ind.  550;  26  Pac.  88;   People  v.  Fellows,  122 

Garner  v.  State,  28  Fla.  113,  9  So.  Cal.    233,   54   Pac.    830;    Beasley   t. 

835;    People  v.  Miller,  114  Cal.  10,  State,  50  Ala.  149;  People  v.  Rogers, 

45    Pac.    986;     Conly    v.    Common-  18  N.  Y.  9,  72  Am.  Dec.  484;  Macon- 

wealth,  17  Ky.  L.  R.  678,  32  S.  W.  nehey  v.  State,  5  Ohio  St.  77;  Evers 

285;    McCook  v.   State,   91   Ga.   740,  v.   State,   31   Tex.   Cr.   App.   318.   20 

17  S.  E.  1019;  State  v.  Murphy,  118  S.  W.  744,  37  Am.  St.  811;  State  v. 
Mo.  7,  25  S.  W.  95;  People  v.  Rogers,  Robinson,  20  W.  Va.  713,  43  Am.  R. 

18  N.'  Y.   9,   72   Am.  Dec.   484;    Up-  799;    French  v.   State,  93  Wis.   325, 
stone  V.  People,  109  111.  169;  People  67  N.  W.  706. 

V.  Garbutt,  17  Mich.  9,  97  Am.  Dec.         i^"  Chrisman  v.  State,  54  Ark.  283. 
162;   1  Hale  P.  C.  32;   4  Blackstone     15  S.  W.  889;  Wood  v.  State,  34  Ark. 


39  INTOXICATION rOiniEU    JEOPARDY.  [§    2730. 

design.^^"  Evidence  of  intoxication  to  such  an  extent  that  the  ac- 
cused must  have  been  physically  unable  to  do  the  act  charged  may 
also  be  received  in  a  proper  case.^^^  A  witness,  although  not  an  ex- 
pert, may  testify  as  to  the  fact  of  intoxication.^^-  And  it  has  been 
held  that  evidence  of  the  conduct  of  the  accused  on  previous  occa- 
sions when  intoxicated  may  be  received  as  tending  to  illustrate  or 
show  his  condition  at  the  time  in  question. ^^^  But  the  witness  can- 
not give  his  opinion  or  conclusion  as  to  whether  the  accused  was  so 
intoxicated  as  to  be  incapable  of  forming  or  entertaining  a  crimi- 
nal intent,^^*  or  so  drunk  as  not  to  know  what  he  was  doing.^^^ 

§  2730.  Former  jeopardy. — It  is  provided  in  nearly  every  consti- 
tution, at  least  in  this  country,  that  no  person  shall  be  twice  put  in 
jeopardy  for  the  same  offense,  but  it  has  been  said  that  this  principle 
is  imbedded  in  the  very  elements  of  the  common  law  and  that  even 
in  the  absence  of  positive  enactment  the  pleas  of  autrefois  acquit  and 
of  autrefois  convict  are  allowed  in  all  criminal  cases. ^^®  It  is  not 
within  the  scope  of  this  work  to  treat  at  length  of  the  vexed  question 
as  to  what  constitutes  former  jeopardy  and  when  it  attaches,  but 
important  contributions  to  the  subject  will  be  found  in  the  refer- 
ence given  below.^^^    "If  the  formal  acquittal,"  says  Professor  Grcen- 

341;    State  v.  Fiske,  63  Conn.   388,  "=  People  v.   Monteith,   73   Cal.   7, 

28  Atl.  572;    Commonwealth  v.  Ha-  14    Pac.    373;     State    v.    Dolan,    17 

genlock,  140  Mass.  125.  3  N.  E.  36;  Wash.   499,   50   Pac.   472;    People   v. 

State  V.  Garvey,  11  Minn.  154;  Scott  Eastwood,    14    N.   Y.    562;    State   v. 

V.  State,  12  Tex.  App.  31;    Aszman  Pierce,  65   Iowa  85,   21  N.  W.  195; 

V.  State,  123  Ind.  347,  24  N.  E.  123;  Vol.  I,  §  678,  note  46. 

State  v.  Donovan,  61   Iowa  369,  16  ^^^  Upstone  v.  People,  109  111.  169; 

N.  W.  206;    State  v.  Zorn,  22  Ore.  but  see.  Commonwealth  v.  Cloonen, 

591,  30  Pac.  317;   Cline  v.  State,  43  151  Pa.  St.  605.  25  Atl.  145. 

Ohio  St.  332,  1  N.  E.  22;    see  also,  ^"  Armor   v.    State.    63    Ala.    173; 

Pigman  v.  State,  14  Ohio  555;  Lytle  see   also.   State  v.    Smith,   49  Conn. 

V.  State.  31  Ohio  St.  196.  376;    People  v.  Slack,  90  Mich.  448, 

^^^  Garner  v.  State,  28  Fla.  113,  9  51  N.  W.  533. 

So.    835;     People    v.    Cummins,    47  '"White  v.  State,  103  Ala.  72,  16 

Mich.  334,  11  N.  W.  184;    Common-  So.  63. 

wealth    V.    Dorsey,    103    Mass.    412;  ^^^  United     States     v.     Gilbert,     2 

State   V.    Mowry,   37   Kans.    369,    15  Sumn.   (U.  S.)  42;   3  Greenleaf  Ev.. 

Pac.    282;    Cluck   v.    State,    40    Ind.  §  35. 

263;    Bernhardt    v.    State.    82    Wis.  '"See,  11  Am.  St.  228,  229,  note: 

23,  51  N.  W.  1009;    Hopt  v.  People,  1  L.  R.  A.  451,  note;  4  L.  R.  A.  453, 

104  U.  S.  631.  note;    44    L.    R.    A.    694,    note;    Re 

'"Ingalls  v.  State,  48  Wis.  647,  4  Ascher,    (Mich.)    57   L.   R.    A.    806; 

N.  W.  785.  State  v.  Howard,  (S.  Car.)  58  JL.  R. 


§    2731.]  GENERAL    PRINCIPLES    AND   RULES.  40 

leaf/^®  "was  for  want  of  substance  in  setting  forth  the  offense,  or 
for  want  of  jurisdiction  in  the  court,  so  that  for  either  of  these  causes 
no  valid  judgment  could  have  been  rendered,  it  is  no  bar  to  a  second 
prosecution;  but  though  there  be  error,  yet  if  it  be  in  the  process 
only,  the  acquittal  of  the  party  is  nevertheless  a  good  bar.  The  suffi- 
ciency of  the  bar  is  tested  by  ascertaining  whether  he  could  legally 
have  been  convicted  upon  the  previous  indictment;  for  if  he  could 
not,  his  life  or  liberty  was  not  in  jeopardy ."^^^  But,  in  a  recent  case, 
in  the  Supreme  Court  of  the  United  States,  this  doctrine,  while  ad- 
mitted to  have  the  support  of  many  authorities,  was  denied,  the  court 
saying:  "After  the  full  consideration  which  the  importance  of  the 
question  demands,  that  doctrine  appears  to  us  to  be  unsatisfactory 
in  the  grounds  on  which  it  proceeds,  as  well  as  unjust  in  its  opera- 
tions upon  those  accused  of  crime;  and,  the  question  being  now  for 
the  first  time  presented  to  this  court,  we  are  unable  to  resist  the  con- 
clusion that  a  general  verdict  of  acquittal  upon  the  issue  of  not  guilty 
to  an  indictment  undertaking  to  charge  murder,  and  not  objected  to 
before  the  verdict  as  insufficient  in  that  respect,  is  a  bar  to  a  second 
indictment  for  the  same  killing."^''*' 

§  2731.  Former  jeopardy — Burden  and  evidence  to  sustain. — To 
sustain  the  plea  of  former  acquittal,  conviction  or  jeopardy,  the  bur- 
den is  generally  held  to  be  upon  the  defendant^"  to  prove  by  a  pre- 

A.  685,  870;  59  L.  R.  A.  578,  note;  precision,  and  tlie  verdict  of  the 
18  Cent.  L.  J.  43.  63,  392,  note;  60  jury  was  received  on  Sunday,  yet 
Cent.  L.  J.  184.  the  former  acquittal  was  held  a  bar. 
^=«  3  Greenleaf  Ev.,  §  35.  "'  Faulk  v.  State,  52  Ala.  415;  Em- 
"»2  Hawkins  P.  C,  chap.  35;  erson  v.  State,  43  Ark.  372;  Jenkins 
chap.  36,  §§  1,  10,  15;  2  Hale  v.  State,  78  Ind.  133;  Cooper  v. 
P.  C.  246-248;  Commonwealth  v.  State,  47  Ind.  61;  Marshall  v.  State, 
Goddard,  13  Mass.  455;  Wharton  8  Ind.  498;  Duncan  v.  Common- 
Am.  Cr.  Law  190-204;  People  v.  Bar-  wealth,  6  Dana  (Ky.)  295;  Vowells 
rett,  1  Johns.  (N.  Y.)  66;  Rex  v.  v.  Commonwealth,  83  Ky.  193,  7  Ky. 
Emden,  9  East  437;  Commonwealth  L.  R.  176;  Commonwealth  v.  Wer- 
v.  Peters,  12  Mete.  (Mass.)  387;  mouth,  174  Mass.  74,  54  N.  E.  352; 
Reg.  v.  Drury,  3  Cox  Cr.  Cas.  544,  3  Commonwealth  v.  Daley,  4  Gray 
Car.  &  Kir.  193,  18  L.  J.  (M.  C.)  189;  (Mass.)  209;  Brown  v.  State,  72 
see  also.  1  Bishop  Cr.  Law  1021;  Miss.  95,  16  So.  202;  Rocco  v.  State, 
Vaux's  Case,  4  Coke  44.  37  Miss.  357;  State  v.  Wister,  62 
""Ball  V.  United  States,  163  U.  S.  Mo.  592;  State  v.  Small,  31  Mo.  197; 
662,  16  Sup.  Ct.  1192.  The  former  State  v.  Andrews,  27  Mo.  267;  State 
indictment  charged  murder,  hut  v.  Ackerman,  64  N.  J.  L.  99,  45  Atl. 
lacked    the    requisite    fullness    and  27;    People  v.  Cramer,  5   Park.  Cr. 


41  FORMER  JEOPARDY.  [§  2?31. 

ponderance  of  the  evidence/"-  both  the  former  conviction,  acquittal 
or  jeopardy  and  the  identity  of  the  person  and  of  the  offense.  The 
identity  of  the  offense  rnay  generally  be  shown  by  producing  the  rec- 
ord, and  showing  that  the  same  evidence,  which  is  necessary  to  sup- 
port the  second  indictment,  would  have  been  admissible  and  suffi- 
cient to  procure  a  legal  conviction  upon  the  first.^*'^  A  prima  facie 
case  on  this  point  being  made  out  by  the  prisoner,  it  has  been  said 
that  it  is  then  incumibent  on  the  prosecutor  to  meet  it  by  proof  that 
the  offense  charged  in  the  second  indictment  was  not  the  same  as 
that  charged  in  the  first.^®*  It  is  not  necessary  that  the  two  charges 
should  be  precisely  alike  in  form,  or  should  correspond  in  things 
which  are  not  essential  and  not  material  to  be  proved ;  the  variance, 
to  be  fatal  must  be  in  matter  of  substance.  The  former  conviction 
or  acquittal  must  usually  be  proved  by  the  record,  unless  a  proper 
foundation  is  laid  for  secondary  evidence,^®^  but  parol  evidence  is 
admissible,  in  a  proper  case,  to  show  the  identity  of  the  offense^®" 
as  well  as  the  person,^**^  and,  perhaps,  on  other  matters  when  re- 
quired by  circumstances.^''^  'Though  the  general  rule,"  says  Green- 
leaf,  "is  thus  strongly  held  against  a  second  trial  in  criminal  cases, 
yet  it  has  always  been  held,  that,  to  the  plea  of  autrefois  acquit,  or 

Cas.    (N.    Y.)     171;    Bainbridge    v.  monwealth  v.  Daley,  4  Gray  (Mass.) 

State,  30  Ohio  St.  264;   Davidson  v.  209. 

State,   40   Tex.   Cr.   App.  285,   49   S.  "'^  Brown  v.  State,  72  Miss.  95,  16 

W.  372,  50  S.  W.  365.  So.   202;    Walter  v.   State,  105   Ind. 

"=  State    v.    Scott,    1    Kans.    App.  589,  5  N.  E.  735;  Bailey  v.  State,  26 

748,    42    Pac.    264;    State   v.    Acker-  Ga.   579;    Robbins  v.   Budd,   2  Ohio 

man,  64  N.  J.  L.  99,  45  Atl.  27;  Da-  16;    State    v.    Hudkins,    35    W.   Va. 

vidson   v.    State,    40    Tex.    Cr.    App.  247,  13  S.  E.  367. 

285,    49    S.   W.   372,    50    S.    W.    365;  ^^  State    v.    Waterman,    87    Iowa 

Willis   v.    State,   24   Tex.   App.    586,  255,    54    N.    W.    359;    Bainbridge   v. 

6  S.  W.  857.  State.    30    Ohio    St.    364;    Brown   y. 

»"' Archibold    Cr.    PI.    87;    Rex   v.  State.  72  Miss.  95,  16  So.  202;  Wil- 

Emden,  9  East  437;    Rex  v.  Clark,  kinson  v.  State,  59  Ind.  416,  26  Am. 

1  B.   &   B.    473;    Rex   v.    Taylor,    3  R.  84;  Durland  v.  United  States,  161 
B.  &  C.  502;   1  Russell  Crimes  832;  U.  S.  306,  16  Sup.  Ct.  508. 
Commonwealth    v.    Roby,    12    Pick.  '"'Reg.  v.  Austin,  2  Cox  Cr.  Cas. 
(Mass.)   496;  Rex  v.  Vandercomb,  2  59. 

Leach  C.  C.  (4th  ed.)   316;  see  also,  ^»^'  See,  Riley  v.  State,  43  Miss.  397; 

Dunn  V.    State.   70   Ind.   47;    Moore  Bainbridge  v.  State,  30  Ohio  St.  264; 

V.  State,  51  Ark.  130,  10  S.  W.  22.  State  v.  Smith,  33  N.  Car.  33;  Com- 

'°*Rex  V.  Bird,  5  Cox  Cr.  Cas.  11,  monwealth    v.    Dascom.    Ill    Mass. 

2  Bng.  L.  &  Eq.  439;   but  see,  Com-  404;    State   v.    Judge,    42    La.    Ann. 

414,  7  So.  678. 


2732.] 


GENERAL   PRINCIPLES    AND    RULES. 


42 


autrefois  convict,  in  prosecutions  for  misdemeanors,  it  is  a  sufficient 
answer  that  the  formal  acquittal  or  conviction  was  procured  by  the 
fraud  or  evil  practice  of  the  prisoner  himself."^*'''  And  it  is  held  that 
the  prisoner  is  entitled  to  a  trial  by  jury  upon  such  an  issue."" 

§  2732.  Provinces  of  court  and  jury. — As  a  general  rule  in  crimi- 
nal cases  as  well  as  in  civil  cases  it  is  the  province  of  the  court  to  de- 
termine the  law  and  of  the  jury  to  determine  the  facts.^''^  But  in 
some  states  the  constitution  provides  that  the  jurors  shall  be  judges 
of  the  law  as  well  as  the  facts.^'^^  Even  under  such  constitutional 
provisions,  however,  it  is  generally  held  that  while  they  may  have 
the  power  to  disregard  the  instructions  of  the  court,  it  is  their  duty 
to  accept  such  instructions  as  to  the  law  and  the  court  has  the  right 
to  so  charge,^^^  at  least  where  the  jurors  are  also  informed  of  their 


^^'S  Greenleaf  Ev..  §  38;  Chitty 
Cr.  Law  657;  Rex  v.  Bear,  2  Salk. 
646;  Rex  v.  Furser,  Sayer  90;  Rex  v. 
Davis,  1  Show.  336;  Anonymous,  1 
Lev.  9;  Rex  v.  Mawbey,  6  Term  R. 
619;  State  v.  Brown.  16  Conn.  54; 
State  V.  Little,  1  N.  H.  257;  Com- 
monwealth v.  Kinney,  2  Va.  Cas. 
139;  Halloran  v.  State,  80  Ind.  586; 
State  v.  Moore,  136  N.  Car.  581,  48 
S.  E.  573. 

""See.  Caldwell  v.  State,  69  Ark. 
322,  63  S.  W.  59;  Funderburk  v. 
State,  (Tex.  Cr.  App.)  64  S.  W. 
1059;  see  also.  State  v.  Ackerman, 
64  N.  J.  L.  99,  45  Atl.  27. 

"'Sparf  v.  United  States,  156  U. 
S.  51,  15  Sup.  Ct.  273;  Common- 
wealth V.  Porter,  10  Mete.  (Mass.) 
263;  Hamilton  v.  People,  29  Mich. 
173;  State  v.  Burpee,  65  Vt.  1,  25 
Atl.  964,  19  L.  R.  A.  145,  36  Am.  St. 
775;  State  v.  Smith,  6  R.  I.  33; 
Duffy  V.  People.  26  N.  Y.  588; 
Erskine's  famous  contest  over  this 
question  in  libel  cases  is  familiar 
to  all.  See,  Rex  v.  St.  Asaph,  3  Term 
R.  428;  Rex  v.  Woodfall,  5  Burr. 
2661;  Rex  v.  Oneby,  2  Str.  766.  Of 
course  questions  as  to  the  admissi- 
bility of  evidence  are  ordinarily  for 


the  court.  People  v.  Ivey,  49  Cal. 
56;  Berry  v.  State,  31  Ohio  St.  219, 
27  Am.  R.  506;  State  v.  Perioux,  107 
La.  Ann.  601,  31  So.  1061;  State  v. 
Williams,  67  N.  Car.  12;  Dugan  v. 
Commonwealth,  102  Ky.  241,  43  S. 
W.  418. 

'■^See,  Blaker  v.  State,  130  Ind. 
203,  29  N.  E.  1077;  Hudelson  v. 
State,  94  Ind.  426;  State  v.  Gannon, 
75  Conn.  206,  52  Atl.  727;  State  v. 
Armstrong,  106  Mo.  395,  16  S.  W. 
604;  Goldman  v.  State,  75  Md.  621, 
23  Atl.  1097;  see  also,  Thompson 
Tr.,  §§  2132-2148. 

"^  State  V.  Gannon.  75  Conn.  206, 
52  Atl.  727;  Blaker  v.  State,  130 
Ind.  203,  29  N.  E.  1077;  Common- 
wealth V.  McManus,  143  Pa.  St.  64, 
21  Atl.  1018,  14  L.  R.  A.  89;  Ford 
V.  State,  101  Tenn.  454,  47  S.  W. 
403;  but  see,  Hudelson  v.  State,  94 
Ind.  426,  Elliott  and  Hammond,  JJ., 
however,  dissenting.  See  general- 
ly. Commonwealth  v.  Anthes,  5  Gray 
(Mass.)  185;  United  States  v.  Bat- 
tiste,  2  Sumn.  (U.  S.)  240;  Mont- 
gomery V.  State,  11  Ohio  424;  1 
Coke  Litt.  155b,  note  5;  3  Cr.  L. 
Mag.  484;  5  South.  L.  Rev.  (N.  S.) 
352;    Cooley  Const.  Lim.    C4th   ed  ) 


43  PROVINCE   OF    COURT   AND   JURY.  [§    2732. 

constitutional  power.  The  subject  is  treated  as  follows  in  a  recent 
case:  "Whenever  a  question  of  law  is  presented,  whether  it  concern 
the  sufficiency  of  the  complaint,  the  impaneling  of  the  jury,  the  ad- 
mission or  rejection  of  testimony,  or  the  conclusion  of  law  from 
the  facts  admitted  or  found,  the  court  alone  answers;  whenever  the 
pleadings  terminate  in  an  issue  of  pure  fact,  the  jury  alone  answers. 
It  happens,  however,  that  there  are  questions — owing  mainly  to  tlie 
form  of  procedure,  but  in  part  to  the  inherent  nature  of  some  ques- 
tions— where  the  law  and  the  fact  are  complicate,  where  the  pure 
question  of  fact  cannot  be  fairly  determined  except  in  relation  to  the 
law,  and  the  pure  question  of  law  cannot  be  determined  until  the 
facts  are  found.  It  is  impossible  for  the  court  alone  to  answer  such 
complicate  question  without  infringing  on  the  province  of  the  jury, 
or  for  the  jury  alone  to  answer  without  infringing  on  the  province 
of  the  court.  In  such  a  case  it  may  be  practical  for  the  jury  to  sep- 
arate the  fact  from  the  law  and  to  find  the  facts,  leaving  the  court  to 
then  declare  the  law;  if  so,  the  jury  returns  a  special  verdict,  finding 
the  facts  involved  in  the  complicate  question,  and  the  court  declares 
the  law  on  the  facts  so  found.  Here  court  and  jury  still  exercise 
their  respective  powers  separately.  But  if  such  separation  is  imprac- 
ticable, the  respective  powers  of  court  and  jury  are  preserved  by  the 
judge's  stating  his  determination  of  the  law  hypothetically — if  the 
facts  are  so  and  so,  this  is  the  law — leaving  the  jury  to  find  the  fact 
in  view  of  the  law  so  determined  by  the  judge,  by  the  return  of  a 
general  verdict.  Wlien  the  plea  of  not  guilty  presents,  as  the  issue, 
a  question  in  which  fact  and  law  are  blended,  the  jury  must  still 
answer  to  the  fact,  and  the  court  to  the  law;  but  whether  that  answer 
shall  be  given  separately,  by  means  of  a  special  verdict,  whereby  the 
court  determines  the  law  directly  upon  facts  already  found  by  the 
jury,  or  shall  be  given,  as  it  were,  jointly,  by  means  of  a  general  ver- 
dict, whereby  the  court  determines  the  law  hypothetically  in  respect 
to  the  facts  as  the  jury  may  properly  find  them,  is  at  the  option  of 
the  jury.     And  this  opposition,  i.  e.,  the  right  to  return  a  general 

397,  et  seq.;  People  v.  Worden,  113  pare,  Fisher  v.  People,  23  111.  218; 

Cal.    569,    45    Pac.    844;    Parrish    v.  Spies  v.  People,  122  111.  1,  12  N.  E. 

State,  14  Neb.  60;   Adams  v.  State,  865,  3  Am.  St.  320;  Fowler  v.  State, 

29  Ohio  St.  412;   State  v.  Miller,  53  85   Ind.   538;    State  v.   Zimmerman, 

Iowa  154,  4  N.  W.  438;   Edwards  v.  31   Kans.   85,  1   Pac.   257;    Beard  v. 

State.   53   Ga.   428;    Berry  v.    State,  State,  71  Md.  275,  17  Atl.  1044,  4  L. 

105  Ga.  683,  31  S.  E.  592;    State  v.  R.  A.  675,  17  Am.  St.  536. 
Johnson,  30  La.  Ann.  904;  but  com- 


§    2733.]  GENERAL    PRINCIPLES    AND   RULES.  44 

verdict  upon  the  issue  joined  to  the  jury,  is  another  essential  feature 
in  trial  of  criminal  causes  by  jury.  It  is  evident  that,  as  a  general 
verdict  involves  an  application  of  law  as  declared  by  the  -^.ourt  to  the 
facts  as  found  from  the  evidence,  the  jury  must  consider  the  law  in 
connection  with  the  evidence  in  reaching  their  ultimate  conclusion; 
and  in  this  limited  sense  they  may  with  doubtful  accuracy  be  called 
( judges  of  the  law ;  but,  as  the  law  determined  by  the  courts  is  the  law 
they  must  consider,  it  is  clear  that,  in  no  sense  which  involves  any 
independent  determination  of  what  the  law  of  the  state  is,  are  they 
the  judges  of  the  law."^'^'*  The  court  may  direct  a  verdict  of  ac- 
quittal in  a  proper  case,-'^^  but  the  accused  has  a  constitutional  right 
to  a  trial  by  a  jury  of  his  peers.  For  this  reason  it  can  seldom  happen 
that  a  verdict  of  guilty  can  properly  be  directed  by  the  court."^  This 
is  especially  true  where  the  constitution  also  makes  the  jurors  judges 
of  the  law  as  well  as  the  facts  even  though  they  are  not  the  sole  and 
exclusive  judges  of  the  law. 

§  2733,  Cautionary  instructions. — Certain  defenses,  such  as  alibi 
and  insanity,  are  often  resorted  to  by  prisoners  who  are  in  reality 
guilty  and  these  defenses  are  therefore  sometimes  looked  upon  with 
disfavor  or  suspicion  by  courts  as  well  as  juries.  It  is  in  regard  to 
such  matters  as  well  as  in  regard  to  the  credibility  of  certain  wit- 
nesses or  classes  of  witnesses,  or  the  weight  to  be  given  to  their  testi- 
mony, that  error  is  most  often  committed  by  invading  the  province  of 
the  jury.  Different  courts  have  taken  somewhat  different  views  as  to 
the  extent  to  which  cautionary  instructions  may  be  given  without 
error,  but,  while  attention  may  doubtless  be  called  to  the  general  na- 
ture of  the  defense  and  the  jury  may  be  instructed  as  to  what  they 
may  take  into  consideration,  in  certain  respects,  in  regard  to  such 

"*  State  V.  Gannon.  75  Conn.  206,  Pa.   St.   591,   29   Atl.   272;    State   v. 

52  Atl.  727,  732,  733.  Winchester,  113  N.  Car.  641.  18  S. 

'"Commonwealth    v.    Merrill,    14  E.  657;  State  v.  Picker,  64  Mo.  App. 

Gray    (Mass.)    415;    Commonwealth  127;    Tucker  v.   State,   57   Ga.   503; 

v.  Lowrey,   158  Mass.   18,  32   N.   E.  State  v.   Wilson,    62    Kans.    621,    64 

940;    State    v.    Trove,    1    Ind.    App.  Pac.  23,  52  L.  R.  A.  679;  Perkins  v. 

553,  27  N.  E.   878;    State  v.  Green,  State,  50  Ala.  154;   Duffy  v.  People, 

117  N.  Car.  695,  23  S.  E.  98;   State  26  N.  Y.  588;  United  States  v.  Tay- 

V.  Warner,  74  Mo.  83;  People  v.  Led-  lor,  11  Fed.  470;   but  see,  People  v. 

won,  153  N.  Y.  10,  46  N.  E.   1046;  Nuemann,    85    Mich.    98,    48    N.    W. 

State  V.  Meyer,  69  Iowa  148,  28  N.  290;  People  v.  Elmer,  109  Mich.  493, 

W.  484.  67  N.  W.  550. 

""  Commonwealth   v.   Werntz.   161 


45  CAUTIONARY   INSTRUCTIONS.  [§    2733. 

defenses  as  well  as  in  determining  the  credibility  of  witnesses,  it  is 
generally  conceded  that  the  court  should  be  careful  not  to  cast  dis- 
credit upon  the  defense  to  the  prejudice  of  the  accused,  and  that  the 
law  does  not  necessarily  discredit  such  defenses,  but  leaves  the  mat- 
ter to  the  jury  to  determine  as  one  of  fact  within  their  own  province,"' 
and  so  where  a  witness  has  wilfully  testified  falsely  as  to  some  other 
material  fact,  while  the  court  may  instruct  the  jury  that  they  may 
take  this  into  consideration  in  weighing  his  testimony  and  disre- 
gard it  all,  still  the  law  does  not  say  that  they  must  disregard  it,  and 
they  should  not  be  so  instructed.^'^^ 

'"31  Cent.  L.  J.  113,  note;  14  Am.  534,    19    Pac.    607;    as   to    insanity: 

St.   41-44,   note;    72  Am.  Dec.   539-  People  v.  Methever,  132  Cal.  326,  64 

549,  note;  as  to  alibi:  Albin  v.  State,  Pac.  481;  Aszman  v.  State,  123  Ind. 

63  Ind.  598;  People  v.  Lattimore,  86  347,  24  N.  E.  123,  8  L.  R.  A.  33. 

Cal.  403,  24  Pac.  1091;   Simmons  v.  ™  Vol.  II,  §   956;   note  in  14  Am. 

State,  61  Miss.  243;  State  v.  Crowell,  St.  45;   see  also,  Vol.  I,  §  296;   Vol. 

149  Mo.  391.  50  S.  W.  893,  73  Am.  II,  §§  961,  965,  966,  1047. 
St.  402;  State  v.  Chee  Gong.  16  Ore. 


CHAPTER  CXXVIII. 


ABDUCTION. 


Sec. 

2734.  Scope  and  purpose. 

Kidnapping. 

2735.  Definition  and  meaning. 

2736.  Kidnapping — Proof. 

2737.  Kidnapping  —  C  o  m  m  o  n-law 

rule  changed. 

2738.  Kidnapping — Proof  of  intent. 

2739.  Kidnapping — Age  and  consent. 

Abduction. 

2740.  Definition  and  meaning. 

2741.  Proof  of  physical  force  not  re- 

quired. 

2742.  Taliing    away    or    detention — 

Proof  sufficient. 

2743.  Proof   of   taking   away — Suffi- 

ciency. 

2744.  Proof  of  intent — Sufficient. 

2745.  Abduction  for  prostitution  or 

concubinage. 


Sec. 

2746.  Purpose       of       prostitution — 

Prima  facie  proof. 

2747.  Proof  of  detention  against  the 

will. 

2748.  Taking  from  the  house  with- 

out   consent    of    parent    or 
guardian. 

2749.  Taking  from  residence  or  cus- 

tody— Proof. 

2750.  Taking  from  parents  without 

consent. 

2751.  Taking  against  the  will  of  the 

person  abducted. 

2752.  Age  of  female  abducted. 

2753.  Previous  chaste  character. 

2754.  Previous     chaste     character — 

Burden  of  proof. 

2755.  Presumption  of  previous 

chaste  character. 

2756.  Proof   of   previous  unchastity 

as  a  defense. 

2757.  Corroborative  proof. 


§  2734.  Scope  and  purpose. — Abduction  is  a  crime  defined  and 
governed  by  statute  in  perhaps  every  state  in  the  United  States.  These 
various  statutes  fully  cover  the  common  law  definition  and  meaning 
of  abduction,  and  usually  include  additional  matter.  In  some  cases 
and  states  the  statutes  include:  (1)  The  unlawful  taking  of  persons 
against  their  will,  usually  termed  kidnapping;  (2)  the  taking  of 
females  for  the  purpose  of  prostitution  or  concubinage;  (3)  the  tak- 
ing of  females  for  the  purpose  of  forcible  marriage  or  defilement; 
(4)  criminal  seduction.  It  is  not  within  the  scope  of  this  chapter 
to  treat  these  several  statutory  crimes.  But,  disregarding  the  statu- 
tory variations,  there  are  many  rules  and  principles  of  evidence  that 
are  common  even  to  these  statutory  offenses.     It  is  the  purpose  of 

46*^ 


47  KIDNAPPING.  [§§  2735,  2736. 

this  chapter  to  give  the  general  rules  and  principles  of  evidence  re- 
lating more  especially,  if  not  exclusively,  to  the  crime  of  abduction 
as  generally  known  and  understood  by  the  term  kidnapping  and  as 
applied  to  the  taking  of  females. 

Kidnapping. 

§  2735.  Definition  and  meaning. — As  defined  by  Blackstone,  kid- 
napping is  the  forcible  abduction  or  stealing  away  of  a  man,  woman 
or  child  from  their  own  country  and  sending  them  into  another.^ 
It  has  been  said  to  be  a  false  imprisonment  aggravated  by  convey- 
ing the  imprisoned  person  to  some  other  place.^  As  defined  by  some 
courts  it  is  said  to  be  an  aggravated  species  of  false  imprisonment.^ 
As  defined  by  some  statutes  and  followed  by  decisions  of  some  courts, 
it  is  a  forcible  or  fraudulent  carrying  away  from  his  place  of  resi- 
dence; or  the  arresting  or  imprisonment  of  any  person  with  intent 
to  have  such  person  carried  away  from  his  residence;  or  secret  con- 
finement within  the  state;  or  detention  against  the  will,  all  wilfully 
and  without  authority  of  law.*  It  is  now  very  generally  conceded 
that  the  offense  is  complete  without  the  sending  the  person  away  to 
another  country.  But  it  is  held  that  the  offense  is  greatly  aggravated 
by  sending  the  abducted  person  away  from  his  own  country  into 
another." 

§  2736.  Kidnapping^ — Proof. — To  constitute  the  crime  of  kidnap- 
ping the  proof  must  show  two  essential  elements :  ( 1 )  The  conveying 
away  against  the  will  and  without  the  consent  of  the  injured  person ; 
(2)  the  absence  of  any  legal  warrant  or  lawful  authority.®    The  of- 

M  Blackstone  Comm.  219;  Black's  People  v.  Chu  Quong,  15  Cal.  332; 

Law  Diet.— Kidnapping,  678;  2  Bou-  State  v.  Sutton,  116  Ind.  527,  19  N. 

vier  91;  1  Russell  Crimes  (3rd  ed.)  E.  602;   Boes  v.  State,  125  Ind.  205, 

716;  State  v.  Whaley,  2  Harr.  (Del.)  25  N.  E.  218;  Eberling  v.  State.  136 

538;  Click  v.  State,  3  Tex.  282;  Peo-  Ind.     117,     35     N.    E.     1023;     Com- 

ple  T.  Camp,  139  N.  Y.  87,  34  N.  E.  monwealth    v.    Blodgett,    12    Mete. 

755.  (Mass.)   56;   Dehn  v.  Mandeville,  68 

^2  Bishop  Cr.  Law  750;    Click  v.  Hun    (N.  Y.)    335,  22  N.  Y.  S.  984; 

State.  3  Tex.  282;  Eberling  v.  State,  Smith  v.   State,  63  Wis.  453,   23  N. 

136  Ind.  117,  35  N.  E.  1023.  W.  879. 

^  Click  V.  State,  3  Tex.  282;   Cas-  'East  PI.  Crown  430;   Roscoe  Cr. 

tillo  V.  State,  29  Tex.  App.  127,  14  Ev.  465;    State  v.  Rollins.   8  N.   H. 

S.  W.  1011;  Smith  v.  State,  63  Wis.  550;   Click  v.  State,  3  Tex.  282. 

453,  23  N.  W.  879.  'Click  v.  State,  3  Tex.  282;    Cas- 

*Gravett    v.    State,    74    Ga.    191;  tillo  v.  State,  29  Tex.  App.  127,  14 


§§  2737,  2738.]  abduction.  48 

fense  may  be  established  in  either  of  two  ways :  (1)  By  proof  show- 
ing that  the  person  was  forcibly  or  fraudulently  carried  off  or  de- 
coyed from  his  place  of  residence  without  lawful  authority;  (2)  by 
proof  of  an  arrest  or  imprisonment  of  a  person  with  the  intention  of 
carrying  him,  or  having  him  carried  away,  in  the  absence  of  any 
lawful  authority.'' 

§  2737.  Kidnapping — Common  law  rule  changed. — Under  the 
common  law  definition  of  kidnapping  in  order  to  establish  the  crime 
the  proof  must  show  that  the  person  charged  either  did  remove  or 
intended  to  remove  the  injured  person  beyond  the  state  or  country. 
But  this  common  law  crime  has  been  generally  modified  by  the  stat- 
utes of  the  several  states  of  this  country  by  making  the  offense  con- 
sist of  either,  (1)  causing  the  person  to  be  secretly  confined  or  im- 
prisoned in  the  state  against  his  will;  or  (2)  causing  him  to  be  sent 
out  of  the  state  against  his  will.  To  establish  the  crime  under  the 
first  division  of  such  a  statute  the  proof  must  show  that  the  confine- 
ment was  secret  within  the  state  or  that  the  intention  existed  of  such 
secret  confinement.  Under  such  a  statute  where  a  person  is  seized 
and  removed  in  broad  daylight  over  public  highways  and  railroads  in 
the  presence  and  view  of  many  persons,  and  taken  to  an  insane  asylum 
and  placed  in  the  custody  of  public  officials  and  in  the  presence  of 
numerous  physicians  and  other  persons,  it  was  held  that  there  was 
no  such  secrecy  about  the  transaction  or  imprisonment  as  to  constitute 
the  crime  of  kidnapping.* 

g  2738.  Kidnapping— Proof  of  intent. — The  charge  of  sending  a 
person  out  of  the  state  against  his  will  may  be  sustained  by  proof  of 
the  intention  to  do  so  and  the  seizure  and  transportation  for  that 
purpose,  although  the  person  is  not  actually  conveyed  out  of  the  state. 
Nor  is  it  absolutely  necessary  to  prove  directly  that  it  was  against  tlie 
will  of  the  person  alleged  to  have  been  kidnapped.  It  is  sufficient 
if  the  proof  shows  that  fraud  or  deception  was  practiced  upon  the 
person  in  order  to  obtain  such  consent.  If  it  is  made  to  appear  that 
the  consent  could  not  have  been  obtained  in  the  absence  of  the  fraud 
or  deception  the  statutory  requirement  of  being  against  the  will  is 
fully  complied  with.     On  this  subject  the  Supreme  Court  of  New 

S.  W.  1011;   Maner  v.  State,  8  Tex.  N.  E.  755;    People  v.  De  Leon,  109 

Cr.  App.  361.  N.  Y.  226,  16  N.  E.  46,  4  Am.  St.  447. 

'State    V.    Kimmerling,    124    Ind.  note;    Smith  v.   State,  63  Wis.  453, 

382,  24  N.  E.  722.  23  N.  W.  879. 

« People  V.  Camp,  139  N.  Y.  87,  34 


49  KIDXAPPIXG.  [§  2739. 

York  say :  "The  consent  of  the  prosecutrix  having  been  procured  by 
fraud,  was  as  if  no  consent  had  been  given,  and  the  fraud  being  a 
part  of  the  original  scheme,  the  intent  of  the  defendant  was  to  cause 
the  prosecutrix  to  be  sent  out  of  the  state  against  her  wilL""  And 
a  person  may  be  guilty  of  kidnapping  under  such  a  statute  where  it 
is  made  to  appear  that  he  intended  to  take  or  send  by  a  boat  to  a 
certain  foreign  country  the  person  alleged  to  have  been  kidnapped, 
although  it  subsequently  appeared  that  the  vessel  was  not  bound  for 
that  country  at  all.  Thus,  where  a  person  procured  the  intoxication 
of  a  sailor  and  caused  him  to  be  taken  on  board  a  vessel  without  his 
consent,  and  with  the  intention  that  he  should  be  taken  out  of  the 
state,  it  was  held  that  the  ofEense  was  complete  although  the  vessel 
was  not  in  fact  intended  to  leave  the  state."  But  in  case  of  stealing 
a  child  with  the  intent  unlawfully  to  detain  or  conceal  it  from  its 
parents  or  other  proper  person,  the  proof  must  show  the  existence  of 
the  intent." 

§  2739.  Kidnapping — Age  and  consent. — Under  most  statutory 
definitions  it  becomes  essential  to  prove  the  age  of  the  injured  person. 
The  distinction  made  by  these  statutes  is  that  under  a  certain  age  the 
offense  is  complete  regardless  of  the  consent  of  the  person  abducted. 
But  over  the  stated  age  it  is  essential  to  prove  that  the  abduction  was 
against  the  will  of  the  person.  So,  too,  the  question  of  age  is  essen- 
tial in  the  use  of  force.  Under  many  of  these  statutes  if  the  person 
is  under  a  stated  age,  it  is  not  necessary  to  prove  the  use  of  either 
force  or  violence.  But  over  such  age  the  offense  is  not  complete 
without  proving  that  force  was  used.^^  The  evidence  must  bring  the 
defendant  within  all  the  material  words  of  the  statute,  as  nothing 
can  be  taken  by  intendment;  accordingly  the  proof  must  show  that 
the  person  abducted  was  within  the  statutory  age  and  that  she  was 
a  maid  or  woman-child,  as  a  description  by  name  is  not  sufficient. ^^ 

"People  V.  De  Leon,  109  N.  Y.  226,  (Mass.)    518;    State  v.  Sullivan,   85 

16  N.  E.  46,  4  Am.  St.  447;    Beyer  N.    Car.    507;    Castillo   v.    State,    29 

V.  People,  86  N.  Y.  369;  Reg.  v.  Hop-  Tex.  App.  127,   14  S.  W.  1011;    An- 

kins.  Car.  &  M.  254.  derson   v.   Commonwealth.   5   Rand. 

"Hadden  v.  People,  25  N.  Y.  373.  (Va.)     627;     United    States    v.    Au- 

"Mayo  V.  State,  43  Ohio  St.  567,  carola,  17  Blatch.  (U.  S.)  423;  Com- 

3  N.  E.  712.  monwealth    v.    Robinson,    Thatcher 

>=  State  V.  Rollins,   8   N.   H.   550;  Cr.  Cas.   (Mass.)   488;   2  Bishop  Cr. 

State  V.  Farrar,  41  N.  H.  53;  Moody  Law  751. 

V.    People,    20    111.    315;     Common-  ''State  v.   O'Bannon,  1   Bail.    (S. 

wealth      v.      Nickerson,      5      Allen  Car.)   144. 
Vol.  4  Elliott  Ev. — 4 


§§  2740,  2741.]  ABDUCTION.  50 

Where  a  person  within  the  prohibited  age  has  been  abducted  it  is  no 
defense  to  show  that  the  defendant  believed  or  had  reason  to  believe 
that  the  person  was  over  the  statutory  age.^* 

Abduction. 

§  2740.  Definition  and  meaning. — Abduction  as  distinct  from  kid- 
napping has  been  defined  as:  "The  unlawful  taking  or  detention  of 
any  female  for  the  purpose  of  marriage,  concubinage  or  prostitu- 
tion.''^^ The  Supreme  Court  of  North  Carolina  approved  Webster's 
definition  as  follows:  "The  crime  is  defined  in  the  statute  by  the 
term  abduction,  which  is  a  term  of  well-known  signification  and  means 
in  law  'the  taking  and  carrying  away  of  a  child,  a  ward,  a  wife,  etc., 
either  by  fraud,  persuasion  or  open  violence.'  "^^  Under  the  English 
statute  on  this  subject,  from  which  most  of  the  American  statutes 
were  framed,  the  ofi^ense  consisted  of  the  taking:  (1)  of  any  woman 
having  certain  property  or  expectancies,  to  be  married  or  defiled ; 

(2)  of  such  a  woman  being  under  the  age  of  twenty-one  years  out 
of  the  possession  of  the  person  having  the  lawful  custody  of  her; 

(3)  of  any  woman  of  any  age  by  force,  with  intent  to  cause  her  to 
be  married  or  defiled;  (4)  of  any  unmarried  girl  under  the  age  of 
sixteen  years  out  of  possession  of  the  person  having  lawful  custody 
of  her;  (5)  of  any  child  under  the  age  of  fourteen  years  with  intent 
to  deprive  its  lawful  guardian  of  its  custody. 

§  2741.  Proof  of  physical  force  not  required. — Many  of  the  stat- 
utes defining  abduction  provide  that  the  act  must  be  forcible.  But 
the  decisions  are  practically  unanimous  in  holding  that  it  is  not  neces- 
sary to  prove  actual  physical  violence  in  order  to  establish  the  forci- 
ble taking  contemplated  by  such  statutes.  The  Supreme  Court  of 
Illinois  approved  an  instruction  on  this  subject  as  follows :  "To  con- 
stitute the  forcible  abduction  or  stealing  of  a  person  within  the 
meaning  of  the  statute,  it  is  not  necessary  that  actual  physical  force 
or  violence  be  used  upon  the  person  kidnapped.  But  it  will  be  suffi- 
cient, if,  to  accomplish  the  removal,  the  mind  of  the  person  was  oper- 
ated upon  by  the  defendants,  by  falsely  exciting  the  fears,  by  threats, 

"People  v.  Fowler,  88  Cal.  136,  25  Carpenter  v.  People,  8  Barb.  (N.  Y.) 

Pac.  1110;  State  v.  Johnson,  115  Mo.  603;  State  v.  Chisenhall,  106  N.  Car. 

480,  22  S.  W.  463.  676,    11    S.    E.    518;    Humphrey    v. 

"  Black's  Law  Diet.  6.  Pope,  122  Cal.  253.  54  Pac.  847. 

^«  State  v.  George,  93  N.  Car.  567; 


51  TAKIXG    AWAY.  [§    2742. 

fraud  or  other  unlawful  or  undue  influence,  amounting  substantially 
to  a  coercion  of  the  will,  so  that,  if  such  means  had  not  been  resorted 
to  or  employed,  it  would  have  required  force  to  efl^ect  the  removal." 
In  commenting  on  tliis  instruction  the  court  further  said :  "The 
statute  defines  kidnapping  to  be  the  forcible  abduction  or  stealing 
away  of  a  man,  woman  or  child  from  his  or  her  own  country,  and 
sending  or  taking  him  or  her  into  another.  While  the  letter  of  the 
statute  requires  the  employment  of  force  to  complete  his  crime,  it 
will  undoubtedly  be  admitted  by  all  that  physical  force  and  violence 
are  not  necessary  to  its  completion.  Such  a  literal  construction  would 
render  this  statutory  provision  entirely  useless.  The  crime  is  more 
frequently  committed  by  threats  and  menaces  than  by  the  employ- 
ment of  actual  physical  force  and  violence.  If  the  crime  may  be 
committed  without  actual  violence,  by  menace,  it  would  seem  that 
any  threats,  fraud  or  appeal  to  the  fears  of  the  individual,  which 
subject  the  will  of  the  person  abducted  and  places  such  person  as 
fully  under  the  control  of  the  other  as  if  actual  force  were  employed, 
would  make  the  offense  as  complete  as  by  the  use  of  force  and  vio- 
lence."^ ^ 

§  2742.  Taking  away  or  detention — Proof  sufficient. — The  prime 
essential  of  the  crime  is  the  taking  away  from  the  residence  or  other 
proper  place  with  an  unlawful  purpose.  What  constitutes  the  taking 
away  is  usually  not  defined  by  statute;  however  the  statutes  some- 
times use  such  words  as  persuade,  entice,  inveigle  or  induce.  As  previ- 
ously seen  it  is  not  necessary  that  the  proof  show  the  use  of  actual 
physical  force.  It  has  been  held  that  a  defendant  may  be  guilty  of 
such  a  charge  even  when  he  was  not  present  at  the  time  of  the  tak- 
ing. And  if  it  is  shown  that  it  was  by  his  inducement  or  persuasion, 
or  that  it  was  through  the  influence  exerted  or  the  inducement  held 
out  and  the  means  for  leaving  provided  by  the  defendant,  it  is  gener- 

"  Moody    V.    People,    20    111.    315;  106  N.  Car.  676,  11  S.  E.  518;  Beyer 

State   V.    Bussey,   58   Kans.    679,    50  v.  People,  86  N.  Y.  369;    Schnicker 

Pac.  891;  People  V.  Carrier,  46  Mich.  v.   People,   88   N.  Y.   192;    Eberling 

442,  9  N.  W.  487;  State  v.  Keith,  47  v.  State,  136  Ind.  117,  35  N.  E.  1023; 

Minn.  559,  50  N.  W.  691;    State  v.  People  v.   Seeley,  37   Hun    (N.  Y.) 

Jamison,  38  Minn.  21,  35  N.  W.  712;  190;   People  v.  De  Leon,  109  N.  Y. 

Lampton    v.    State,    (Miss.)    11    So.  226,  16  N.  E.  46,  4  Am.  St.  447,  note: 

656;  State  v.  Johnson,  115  Mo.  480,  Reg.  v.  Handley,  1  Fos.  &  Fin.  648. 
22  S.  W.  463;    State  v.  Chisenhall, 


§   2743.]  ABDUCTION.  52 

ally  sufficient.  As  stated  by  one  court:  "It  is  immaterial  whether  he 
took  her  by  the  hand  and  led  her  away,  sent  a  special  conveyance  to 
carry  her  from  her  parents,  or  planned  and  provided  that  she  should 
go  in  a  public  conveyance.  It  matters  not  what  agency  he  provided  or 
employed  to  take  her  away ;  it  is  enough  that  he  caused  or  procured  her 
to  be  taken  against  the  wish  of  her  parents,  and  that  it  was  done  for 
the  illicit  purpose." ^^  The  holdings  in  some  jurisdictions  indicate 
that  the  statutory  taking  or  detention  may  be  purely  j&ctitious.^^ 

§  2743.  Proof  of  taking  away — Sufficiency. — To  establish  the 
crime  of  abduction  there  must  be  proof  of  a  taking  away  or  out 
of  the  custody  or  possession  of  another.  However,  very  slight  evi- 
dence may  be  sufficient  to  establish  this  fact,  but  it  is  necessary  that 
there  be  some  positive  act  to  get  the  female  away  from  the  person 
having  the  legal  charge  of  her.  It  is  not  necessary  to  establish  a 
fixed  distance,  nor  is  it  necessary  to  show  that  she  was  kept  per- 
manently away  from  her  home  or  place  of  residence.  Nor  is  the 
proof  of  an  intention  to  keep  her  permanently  away  from  home  es- 
sential to  the  existence  of  the  crime.  The  rule  on  this  subject  is 
stated  by  the  Supreme  Court  of  Illinois  thus:  "So  we  hold  in  this 
case,  that  when  the  heartless  libertine,  by  his  seductive  arts,  or  other 
means,  induces  his  confiding  or  intimidated  victim,  as  the  case  may  be, 
to  abandon  home  and  the  wholesome  restraints  of  parental  author- 
it}^,  to  accompany  him  whithersoever  he  may  see  proper  to  take  her, 
without  limit  as  to  time  or  place,  for  the  purpose  of  submitting  to 
his  licentious  embraces  and  ministering  to  his  unbridled  lust,  he 
clearly  brings  himself  within  the  provisions  of  the  section  of  the 
statute  we  are  now  considering,  and  subjects  himself  to  the  punish- 
ment therein  enounced."^'' 

"  State  V.  Bussey,  58  Kans.  679,  50  "  Malone    v.    Commonwealth,    91 

Pac.    891;    State    v.    Overstreet,    43  Ky.   307,  15   S.  W,   856;    Higgins  v. 

Kans.  299,   23  Pac.  572;    Slocum  v.  Commonwealth,  94  Ky.  54,  21  S.  W. 

People,  90  111.   274;    People  v.  Car-  231;    Couch    v.    Commonwealth,    16 


rier,  46  Mich.  442,  9  N.  W.  487 
Beyer  v.  People,  86  N.  Y.  369 
Schnicker  v.  People,  88  N.  Y.  192 


Ky.  L.  R.  477,  29  S.  W.  29;  Howell 
V.  Commonwealth,  5  Ky.  L.  R.  174; 
State  V.   Jamison,    38   Minn.    21,   35 

People  V.    Seeley,   37   Hun    (N.  Y.)      N.  W.  712;  State  v.  Keith,  47  Minn. 

190;  State  v.  Chisenhall,  106  N.  Car.     559,  50  N.  W.  691;  State  v.  Johnson. 

676,  11  S.  E.  518;   Payner  v.  Com-     115  Mo.  480.  22  S.  W.  463. 

monwealth,    (Ky.)    19    S.    W.    927;         ""  Henderson  v.  People,  124  111.  607. 

Humphrey  v.  Pope,  122  Cal.  253,  54     17  N.  E.  68;    Slocum  v.  People,  90 

Pac.  847.  111.  274. 


53  INTENT.  [§•§  2744,  2745. 

§  2744.  Proof  of  intent — Sufficient. — The  offense  may  be  suffi- 
ciently established  by  proof  of  two  essential  elements :  ( 1 )  The  un- 
lawful taking  of  the  person;  (2)  the  intent  with  which  it  is  done. 
The  gravamen  of  the  offense  is  the  purpose  or  intent  with  which  the 
enticing  and  abduction  is  done;  hence  it  is  not  necessary  in  order  to 
sustain  a  conviction  to  make  proof  of  any  subsequent  acts.  The  only 
purpose  for  whicli  tlic  subsequent  acts  are  proved,  or  are  permitted 
to  be  proved,  is  to  establish  the  intent  with  which  the  taking  or  en- 
ticing was  done ;  but  if  the  intent  is  sufficiently  proved  without  these, 
the  crime  is  established.  This  rule  is  stated  as  follows:  "The  of- 
fense, if  committed  at  all,  is  complete  the  moment  the  subject  of  the 
crime  is  removed  beyond  the  power  and  control  of  her  parents,  or 
of  others  having  lawful  charge  of  her,  whether  any  illicit  intercourse 
ever  takes  place  or  not.  Subsequent  acts  are  only  important  as 
affording  the  most  reliable  means  of  forming  a  correct  conclusion  with 
respect  to  the  original  purpose  and  intention  of  the  accused."-^  And 
it  has  been  held  that  the  unlawful  intent  of  a  defendant  might  fairly 
be  inferred  from  the  end  attained  and  the  circumstances  surround- 
ing the  case.^^  But  it  is  said  to  be  an  elementary  principle  that  when 
a  specific  intent  is  required  to  make  an  act  an  offense,  that  the  mere 
proof  of  doing  the  act  raises  no  presumption  that  it  was  done  with 
the  specific  intent.-^ 

§  2745.  Abduction  for  prostitution  or  concubinage. — The  offense 
is  not  established  until  the  proof  shows  that  the  defendant  took  away 
the  female  with  tlie  intent  of  using  her  for  the  purpose  of  prostitu- 
tion or  concubinage,  or  some  other  prohibited  use.  It  is  not  suffi- 
cient under  such  statutes  to  prove  that  the  taking  away  was  simply 
for  the  purpose  of  having  illicit  sexual  intercourse  with  the  defend- 
ant alone.    Some  statutes,  however,  make  this  the  crime.    But  gener- 

=»  Henderson    v.    People,    124    111.  People   v.    Stott,   4   N.   Y.   Cr.   306; 

607,  17  N.  E.  68;   Slocum  v.  People,  Commonwealth  v.  Kaniper,  3  Pa.  Co. 

90  111.  274;   People  v.  Fick,  89  Cal.  Ct.  276. 

144,  26  Pac.  759;  Gravett  v.  State,  74  -People  v.  Fick,  89  Cal.   144,  26 

Ga.  194;   State  v.  Bussey,  58  Kans.  Pac.  759;   Beyer  v.  People,  86  N.  Y. 

679,   50   Pac.   891;    Payner  v.   Com-  369;  People  v.  Wah  Lee  Mon,  37  N. 

monwealth,     (Ky.)    19    S.    W.    927;  Y.  St.  283,  13  N.  Y.  S.  767. 

People  V.   Carrier,   46   Mich.   442,   9  =»  State  v.  Gibson,  111  Mo.  92.  19 

N.  W.  487;  State  v.  Gibson,  111  Mo.  S.  W.  980;   People  v.  Plath,  100  N. 

92,  19  S.  W.  980;   State  v.  Johnson,  Y.  590,  3  N.  E.  790:  State  v.  Payne, 

115  Mo.  480,  22  S.  W.  463;   State  v.  10  Wash.  545,  39  Pac.  157;   Lawson 

Rorebeck,  158  Mo.  130,  59  S.  W.  67;  Pres.  Ev.  553. 


§§  2746,  2747.]  abduction.  54 

ally  the  proof  must  show  that  it  was  for  the  purpose  of  prostitution, 
the  meretricious  illicit  intercourse,  an  indiscriminate,  common  inter- 
course with  men.-*  But  where  the  charge  was  the  taking  away  for 
the  purpose  of  concubinage,  the  charge  was  held  to  be  sustained  where 
the  proof  showed  a  cohabitation,  though  but  one  act  of  intercourse  was 
proved.^^ 

§  2746.  Purpose  of  prostitution — Prima  facie  proof. — It  must  be 
made  to  appear  that  the  taking  away  of  the  female  was  for  the  un- 
lawful purposes  named  in  the  statute,  or  some  one  of  them.  And  the 
intent  is  the  gravamen  of  the  offense,  and  must  be  proved  as  an  es- 
sential element  of  the  crime.  So  it  has  been  held  that  the  taking 
of  the  abducted  person  to  a  house  of  prostitution  or  of  ill-fame  is 
prima  facie  proof  of  the  taking  for  the  purpose  of  prostitution.^® 

§  2747.  Proof  of  detention  against  the  will. — Some  statutes  make 
the  offense  to  consist  of  detaining  a  women  against  her  will  with  in- 
tent to  have  carnal  knowledge  with  her.  To  sustain  a  conviction 
under  such  a  statute  it  is  only  necessary  to  prove  that  the  defendant 
detained  the  complaining  witness  against  her  will  with  the  inten- 
tion to  carnally  know  her.     And  it  is  no  defense  to  show  that  there 

"People  v.  Demousset  71  Cal.  611,  Pac.    899;    State    v.    Overstreet,    43 

12  Pac.   788;    Slocum  v.   People,   90  Kans.   299,  23   Pac.   572;    Osborn  v. 

111.   274;    Henderson  v.   People,   124  State,    52    Ind.    526;    Henderson    v. 

111.  607,  17  N.  E.  68;  Bunfill  v.  Peo-  People,   124   111.    607,   17    N.    E.    68; 

pie,  154   111.  640,  39  N.  E.  565;    Os-  Slocum  v.  People,  90  111.  274;   State 

born  V.  State,  52  Ind.  526;   State  v.  v.  Bussey,  58  Kans.  679,  50  Pac.  891; 

Ruhl,   8    Iowa  447;    Commonwealth  People  v.  Commons,  56  Mich.  544,  23 

V.  Cook,  12  Mete.  (Mass.)  93;  State  N.    W.    215;    People   v.    Bristol,    23 

V.  Stoyell,  54  Me.  24;   State  v.  Wil-  Mich.  118;  State  v.  Gibson,  111  Mo. 

kinson,  121  Mo.  485,  26  S.  W.  366;  92,  19  S.  W.  980;  State  v.  Rorebeck, 

State  V.  Bobbst,  131  Mo.  328,  32  S.  158  Mo.  130,  59  S.  W.  67;    State  v. 

W.  1149;  State  v.  Rorebeck,  158  Mo.  Wilkinson,    121    Mo.    485,   26    S.   W. 

130,  59   S.  W.  67;    State  v.  Gibson,  366;    Commonwealth   v.   Kaniper,   3 

111  Mo.  92,  19  S.  W.  980;    State  v.  Pa.  Co.  Ct.  276;   Tucker  v.  State.  8 

Brow,   64  N.    H.   577;    Carpenter  v.  Lea  (Tenn.)  633;  South  v.  State,  97 

People,  8  Barb.  (N.  Y.)  603;  People  Tenn.    496,    37    S.    W.    210;    United 

v.  Plath,  100  N.  Y.  590,  3  N.  E.  790;  States  v.  Zes  Cloya,  35  Fed.  493. 

People  V.  Parshall,  6  Park.  Cr.  Cas.  -"  Brown  v.  State,  72  Md.  468,  20 

(N.  Y.)    129;    United  States  v.   Zes  Atl.  186;   Estrado,  ex  parte,  88  Cal. 

Cloya.  35  Fed.  493.  316,  26  Pac.  209;  People  v.  Fick    89 

^  State    v.    Feasel,    74    Mo.    524;  Cal.  144,  26  Pac.  759. 
State  V.  Goodwin,  33  Kans.  538,  6 


55  THE  TAKING.  [§§  2748,  2749. 

was  no  intention  of  having  the  illicit  intercourse  against  her  will; 
the  offense  under  such  a  statute  consists  in  the  detention  against  the 
will  for  the  purpose  of  the  sexual  intercourse;  the  crime  is  complete 
if  the  detention  is  against  the  will,  even  though  it  is  to  obtain  consent 
to  the  illicit  act.-" 

§  2748.  Taking-  from  the  house  without  consent  of  parent  or 
g'uardian. — These  statutes  usually  prohibit  the  taking  of  the  female 
for  the  purpose  of  prostitution  or  concubinage  without  the  consent 
of  the  parents,  or  from  the  parent's  house  or  wherever  she  may  be 
found.  In  order  to  convict  a  defendant  on  such  a  charge  the  proof 
must  establish  three  elements :  ( 1 )  There  must  be  a  taking  away 
within  the  meaning  of  the  law;^*  (2)  the  existence  of  the  intent;-^ 
(3)  it  must  be  without  the  consent  of  the  parents,  or  taking  from 
their  house.  Under  such  a  statute,  where  it  appeared  that  a  girl 
living  with  her  parents  was  induced  or  persuaded  to  go  to  some  con- 
venient place,  away  from  her  father's  house  but  in  the  immediate 
neighborhood,  for  the  purpose  of  prostitution,  continuing,  however, 
to  dwell  with  her  parents  as  usual,  it  was  held  to  be  sufficient.  The 
proof  need  not  show  that  the  taking  or  enticing  was  to  a  distant  place 
or  for  any  particular  lengih  of  time,  nor  that  there  was  any  intention 
to  keep  her  permanently  from  her  parent's  residence.  ^° 

§  2749.  Taking  from  residence  or  custody — Proof. — The  statutes 
against  kidnapping  or  abduction  usually  provide  in  a  general  way 
against  the  taking  or  carrying  of  a  person  from  his  place  of  resi- 
dence, or  the  taking  of  a  female  under  a  certain  age  from  the  resi- 
dence or  custody  of  her  parents  or  guardian,  or  those  having  legal 
charge  of  her.  To  establish  the  ofPense  under  such  a  statute,  the 
proof  must  show  that  there  was  a  carrying  or  taking  of  the  person 
either  forcibly  or  fraudulently  from  his  place  of  residence.  ^^    But  it 

"  Payner  v.  Commonwealth,  (Ky.)  N.  J.  L.  432;  see  Bunfill  v.  People, 

19    S.    W.    927;     Huff    v.    Common-  154  111.  640,  39  N.  E.  565. 

wealth,  18  Ky.  L.  R.  752,  37  S.  W.  "'  See  §  2743. 

1046;     Beaven     v.     Commonwealth,  ="  See  §  2744. 

(Ky.)  30  S.  W.  968;  Wilder  v.  Com-  ^°  Slocum    v.    People,    90    111.    274; 

monwealth,    81    Ky.    591;    Krambiel  State  v.  Johnson,  115  Mo.  480,  22  S. 

V.  Commonwealth,  8  Ky.  L.  R.  605,  W.  463;    Reg.  v.  Baillie,   8  Cox  Cr. 

2    S.    W.    555:    Cargill    v.    Common-  Cas.   238;    Reg.  v.   Timmins,   8   Cox 

wealth,    (Ky.)    13    S.   W.   916;    Hig-  Cr.  Cas.  401. 

gins  V.  Commonwealth,   94   Ky.   54,  =^  Boes  v.   State.   125   Ind.   205,   25 

21  S.  W.  231;    State  v.  Gordon,  46  N.  E.  218. 


§    2750.]  ABDUCTION.  56 

is  not  necessary  in  such  case  to  prove  that  the  person  alleged  to  have 
been  kidnapped  had  acquired  a  permanent  residence  at  the  place  from 
which  he  was  so  taken.  It  is  sufficient  if  the  proof  shows  that  the 
person  was  at  a  place  where  he  had  a  right  to  be.^^  The  statute  con- 
templates an  actual  state  of  things  and  not  the  existence  of  a  legal 
relation,  and  an  orphan  living  in  a  family  without  legal  guardian- 
ship, or  a  girl  abandoned  by  her  parents  and  given  a  home  by  a  chari- 
table person  is  within  the  meaning  of  the  statute.  It  is  presumed 
that  every  female  within  the  prohibited  age,  who  is  not  already  de- 
praved, is  in  the  legal  charge  of  some  one.^^ 

§  2750.  Taking  from  parents  without  consent. — The  prohibition 
of  the  statutes  usually  applies  to  the  taking  of  the  females  under  cer- 
tain age  without  consent  or  against  the  will  of  the  parents  or  guardian, 
or  other  persons  in  whose  charge  they  are.  Under  the  rules  for- 
merly given  the  taking  must  be  for  the  illicit  purpose.  The  agencies 
employed  are  immaterial,  if  it  is  sufficient  to  induce  the  female  to 
leave  against  the  wish  of  her  parents.^*  But  it  is  not  always  necessary 
to  allege  or  prove  that  such  taking  was  without  the  consent  of  parent 
or  guardian ;  it  has  been  held  to  be  proper  to  allege  and  prove  from 
whose  custody  the  female  was  taken  ;=^^  but  not  necessary.^*^  The 
father  and  mother  or  other  person  may  testify  that  the  daughter  was 
taken  without  their  consent,  and  it  is  proper  for  them  to  state  any 
and  all  efforts  made  to  find  her."  Proof  of  declarations  of  a  parent 
of  an  abducted  child  is  competent  and  material  for  the  purpose  of 
showing  the  want  of  consent  to  the  taking,  where  the  statute  pro- 
vides that  the  taking  must  be  without  the  consent  or  against  the  will 
of  the  parent.  But  the  consent  of  the  parent  or  guardian  is  a  matter 
of  defense,  and  must  be  established  by  the  defendant.^^     Nor  ie  the 

'=  Wallace     v.  State,  147  Ind.  621,  =»  State  v.   Jamison.   38  Minn.   21, 

47  N.  E.  13.  35   N.   W.   712;    Tucker   v.    State,    8 

=^  People  V.  Carrier,  46  Mich.  442,  Lea   (Tenn.)   633;   Scruggs  v.  State, 

9  N.  W.  487.  90  Tenn.  81,  15  S.  W.  1074;    South 

^*  State  V.   Bussey,   58   Kans.    679,  v.  State,  97  Tenn.  496,  37  S.  W.  210. 

50  Pac.  891;   State  v.  Rorebeck,  158  ^^  State  v.  Keith,  47  Minn.  559,  50 

Mo.  130,  59  S.  W.  67;  People  v.  See-  N.  W.  691. 

ley,  37  Hun    (N.  Y.)    190;    State  v.  =' State  v.  Stone,  106  Mo.  1.  16  S- 

Ruhl,  8   Iowa  447;    People  v.   Mar-  W.   890;    State   v.   Bobbst,   131   Mo. 

shall,  59  Cal.  386;  People  v.  Carrier,  328,  32  S.  W.  1149. 

46  Mich.  442,  9  N.  W.  487;   Reg.  v.  =' State  v.  Chisenhall,  106  N.  Car. 

Manktelow,  6  Cox  Cr.  Cas.  143;  Reg.  676,  11  S.  E.  518. 
v.   Timmins,    8    Cox   Cr.    Cas.    401; 
Reg.  V.  Olifier,  10  Cox  Cr.  Cas.  403. 


57  TAKING   AGAINST   WILL.  [§    2751. 

parent  required  to  inform  the  person  who  attempts,  or  who  intends 
to  abduct  his  daughter  that  it  is  against  his  consent;  it  is  not  es- 
sential to  the  guilt  of  the  defendant,  that  he  should  be  notified  of  the 
father's  unwillingness  to  relinquish  his  authority  over  his  child;  the 
father  is  under  no  obligation  to  remonstrate  with  one  who  attempts 
or  seeks  to  abduct  his  daughter;  such  a  course  might  precipitate  the 
event  he  wished  to  prevent.^''  Some  statutes  do  not  include  the  tak- 
ing away  against  the  will  or  without  the  consent  of  the  parent  or 
guardian.  In  such  cases  no  proof  is  required  on  the  question  of  the 
taking  against  the  will  or  without  parental  consent.*"  A\liere  the 
female  abducted  is  within  the  prohibited  age,  it  is  no  defense  to  show 
that  the  taking,  or  the  acts  of  illicit  intercourse,  was  with  her  con- 
sent; it  is  sufficient  if  it  is  without  the  consent  or  against  the  will  of 
the  parents.*^  And  where  the  charge  is  that  of  taking  of  a  girl  within 
the  prohibited  age  from  the  custody  of  her  parents  or  guardian  it  is 
not  necessary  to  prove  that  the  female  was  taken  from  the  actual 
custody  of  the  parents  or  guardian,  but  proof  of  legal  custody  at  the 
time  the  child  is  taken  is  sufficient  although  it  is  shown  that  such 
female  was  actually  taken  from  some  other  person.*- 

§  2751.     Taking  against  the  will  of  the  person  abducted. — The 

statute  against  the  abduction  of  females  above  a  certain  age  for  the 
purpose  of  prostitution  or  concubinage  not  only  provides  that  the  act 
shall  be  forcible  but  also  that  it  must  be  against  the  will  of  the  per- 
son abducted.  The  instances  are  very  rare  where  a  woman  of  mature 
years  is  forcibly  and  bodily  seized  and  carried  away  for  such  illegal 
and  immoral  purposes  against  her  will.  Almost  all  of  the  reported 
cases  are  those  where  the  consent  has  been  obtained  by  fraud  or  the 

=°Gravett  v.  State.  74  Ga.  191.  1149;  Tucker  v.  State,  8  Lea  (Tenn.) 

'"State  V.  George,  93  N.  Car.  567.  633;   Scruggs  v.  State,  90  Tenn.  81, 

"People  V.  Cook,  61  Cal.  478;  Peo-  15   S.  W.   1074;    South   v.   State,   97 

pie    V.    Demousset,    71    Cal.    611,    12  Tenn.    496,    37    S.    W.    210;    United 

Pac.   788;    People  v.  Dolan,  96  Cal.  States  v.  Aucarola,   17   Blatch.    (U. 

315,  31  Pac.  107;   Gravett  v.  State,  S.)   423;   Reg.  v.  Manktelow,  6  Cox 

74   Ga.   191;    Thweatt   v.    State,   74  Cr.  Cas.  143;   Reg.  v.  Kipps,  4  Cox 

Ga.  821;   State  v.  Bussey,  58  Kans.  Cr.  Cas.  167;  Reg.  v.  Biswell,  2  Cox 

679,  50  Pac.  891;  State  v.  Round,  82  Cr.   Cas.   279;    Rex  v.   Ossulston,   2 

Mo.  679;   State  v.  Stone,  106  Mo.  1,  Str.  1107. 

16  S.  W.  890;    State  v.  Gibson,  111         "Estrado,  Ex  Parte,  88  Cal.  316, 

Mo.  92,  19  S.  W.  980;  State  v.  John-  26  Pac.  209;  Gandy  v.  State,  81  Ala, 

son,  115  Mo.  480,  22  S.  W.  463;  State  68,  1  So.  35. 
V.    Bobbst,    131    Mo.    328,    32    S.    W. 


§  2752.]  ABDUCTION.  58 

will  overcome  in  some  other  improper  manner.'*^  Thus  where  it  ap- 
peared that  the  defendant  falsely  represented  to  the  person  abducted 
that  he  had  procured  a  situation  for  her  as  a  servant  in  a  respectable 
family,  and  that  without  any  suspicion  of  his  object,  and  relying  upon 
his  statements  she  was  induced  to  proceed  with  him  to  a  disreputa- 
ble house  where  the  crime  was  consummated.  In  speaking  of  this  the 
court  said :  "It  cannot,  therefore,  be  said  that  she  went  there  volun- 
tarily for  the  purpose  of  being  defiled,  and  it  is  manifest  that  it  was 
contrary  to  her  will  to  become  the  inmate  of  such  a  house,  and  that 
she  neither  expected  nor  contemplated  such  a  result.  She  was  an 
unwilling  victim  of  misrepresentation,  fraud  and  falsehood,  and  as 
the  prisoner  intended  to  accomplish  her  defilement,  and  she  did  not 
go  willingly  to  be  defiled,  or  in  any  way  assent  to  the  act,  it  is  a 
logical  and  rational  inference  that  she  was  taken  unlawfully  against 
her  will  within  the  meaning  of  the  statute."**  The  rule  is  that  where 
the  consent  is  procured  by  fraud  and  deception  it  is  the  same  as  if 
no  consent  had  been  given;  this  applies  to  both  kidnapping  and  ab- 
duction.*^ In  another  case  the  court  held  that  "it  was  not  necessary 
for  the  prosecution  to  show  that  actual  physical  violence  had  been 
used  by  the  person,  to  constitute  a  taking  of  the  prosecutrix  against 
her  will  within  the  meaning  of  the  section,  but  that  it  was  sufficient 
if  she  had  been  induced  by  deceit  or  false  pretense  of  the  prisoner  to 
go  to  the  place."  It  is  sufficient  if  the  evidence  shows  a  taking  with- 
out consent,  though  it  may  not  establish  that  the  taking  was  against 
the  will.*''  Where  the  proof  shows  that  the  attempted  defilement  was 
made  while  the  female  was  asleep,  it  was  held  to  be  without  her  con- 
sent and  against  her  will.*'^ 

§  2752.  Age  of  female  abducted. — All  the  statutes  on  the  subject 
of  abduction  fix  an  age  within  which  the  taking  of  the  female  for 
the  unlawful  purposes  enumerated,  without  the  consent  of  the  parent 
or  other  person,  constitutes  the  crime.  In  other  cases  the  enticing 
away  of  women  over  a  stated  age  without  their  consent,  for  the  pro- 
hibited purposes,  constitutes  a  crime.  In  either  case  the  proof  of  the 
age  of  the  person  alleged  to  have  been  abducted  is  an  essential  in- 

"Gravett   v.    State,    74    Ga.    191;  « People   v.   De   Leon,   109   N.    Y. 

Moody  V.  People,  20  111.  315,  316.  226,  16  N.  E.  46,  4  Am.  St.  447. 

"Beyer  v.  People,  86  N.  Y.  369;  ^« People   v.    Seeley,    37    Hun    (N. 

Schnlcker  v.  People,  88  N.  Y.  192;  Y.)   190. 

People  V.  De  Leon,  109   N.  Y.   226,  "  Couch  v.  Commonwealth,  16  Ky. 

16  N.  E.  46.  4  Am.  St.  447.  L.  R.  479,  29  S.  W.  29. 


59  PREVIOUS    CHASTE    CHARACTER,  [§    2753, 

gredient  to  constitute  the  offense.  If  tlie  female  is  within  the  pro- 
hibited age,  and  the  prohibited  acts  are  done  without  the  consent  of 
the  parent,  the  crime  is  complete  although  the  alleged  abduction 
might  have  been  with  the  consent  of  the  female.  In  the  other  case  the 
proof  of  age  is  necessary  in  order  to  avoid  the  necessity  of  proving 
that  it  was  without  the  consent  or  against  the  will  of  the  parent  or 
guardian.  Wliere  the  abduction  is  alleged  to  be  that  of  a  female  within 
the  prohibited  age,  it  is  no  defense  to  the  action  that  the  acts  consti- 
tuting the  offense,  or  any  or  all  of  them,  were  done  with  the  consent  of 
the  person  alleged  to  have  been  abducted.**  Xor  is  it  any  defense 
that  the  person  alleged  to  have  been  abducted  informed  the  defendant 
that  she  was  over  the  age  fixed  by  the  statute.*^  ^N'or  is  it  any  defense 
that  the  defendant  believed,  or  had  good  reasons  to  believe,  that  the 
person  alleged  to  have  been  abducted  was  over  the  prohibited  age.  In 
all  such  cases  he  acts  at  his  peril,  and  the  fact  that  he  was  honestly 
mistaken  in  the  age  of  his  victim  affords  no  excuse  for  the  commission 
of  the  crime,^*^ 

§  2753.  Previous  chaste  character. — Many  of  the  statutes  describ- 
ing the  act  of  abduction  apply  the  term  of  "previous  chaste  char- 
acter" or  an  equivalent  expression  to  the  person  alleged  to  have  been 
abducted.  Under  such  a  statute  the  question  is,  what  proof  must  be 
made  as  to  the  alleged  previous  chaste  character?  In  some  jurisdic- 
tions it  is  expressly  held  that  it  is  not  necessary,  in  the  first  in- 
stance, for  the  prosecution  to  offer  any  evidence  on  that  subject.  "The 
presumption  of  law  is  that  her  previous  life  and  conversation  were 
chaste  and  the  onus  was  upon  the  defendant  to  show  otherwise,"  But 
it  is  not  improper  to  introduce  evidence  fortifying  this  legal  presump- 
tion, and  such  chastity  may  be  reasonably  inferred  from  evidence  of 
the  girl's  previous  associations.^^  The  proof  relating  to  such  previous 
chaste  character  must  be  limited  in  point  of  time  to  that  immediately 

« People  V.  Fowler,  88  Cal.  136,  25  v.  Stott,  4  N.  Y.  Cr.  306;   Hermann 

Pac.  1110;    People  v.  Stott,  4  N.  Y.  v.  State,  73  Wis.  248,  41  N.  W.  171; 

Cr.  306.  Reg.  v.  Robins,  1  Car.  &  Kir.  456; 

«  State  v.  Ruhl,  8  Iowa  447;  Reg.  Reg.  v.  Prince,  13  Cox  Cr.  Cas.  138, 
V.  Olifier,  10  Cox  Cr.  Cas.  402.  "  Slociim   v.    Slocum,   90  111.   274; 

="  People  V.  Dolan,  96  Cal.  315.  31  Bradshaw  v.  People.  153  111.  156,  38 

Pac.  107;   People  v.  Fowler.  88  Cal.  N.  E.  652;    Andre  v.  State,  5  Iowa 

136,  25  Pac.  1110;   State  v.  Ruhl.  8  389;   State  v.  Higdon.  82  Iowa  262; 

Iowa  447;    State  v.   Houx,   109   Mo.  People  v.  Brewer,  27  Mich.  134,  138; 

654,  19  S.  W.  35;  State  v.  Johnson,  Carpenter  v.  People,  8  Barb.  (N.  Y.) 

lis' Mo.  480,  22  S.  W.   463;    People  603. 


§§  2754,  2755.]  abduction.  60 

preceding  the  alleged  abduction.  "The  word  'previous/  in  this  con- 
nection, must  be  understood  to  mean  immediately  previous,  or  to  re- 
fer to  a  period  terminating  immediately  previous,  to  the  commence- 
ment of  the  guilty  conduct  of  the  defendant.  If  the  female  had 
previously  fallen  from  virtue,  but  had  subsequently  reformed  and  be- 
come chaste,  there  is  no  doubt  that  she  may  be  the  subject  of  the 
offense  declared  in  the  statute.'"'-  But  proof  of  any  acts  on  the  part 
of  the  female,  subsequent  to  the  time  of  the  alleged  abduction  by  the 
defendant,  is  incompetent  on  his  behalf.^^ 

§  2754.  Previous  chaste  character — Burden  of  proof. — In  a  prose- 
cution under  a  statute  that  provides  that  the  person  abducted  must 
possess  a  previous  chaste  character,  the  burden  of  proof  is  generally 
held  to  be  upon  the  defendant  to  show  that  the  person  alleged  to  have 
been  abducted  was  not  of  previous  chaste  character.  The  presumption 
of  law  is  that  her  previous  life  and  conversation  were  chaste,  and  this 
presumption  must  be  overcome  by  proof  on  the  part  of  the  defendant, 
and  no  evidence  need  be  offered  by  the  prosecution  in  the  first  instance. 
Proof  of  lewd  life  and  conversation  after  the  time  of  the  alleged 
abduction  is  not  admissible  to  prove  prior  unchastity.  A  defendant 
will  not  be  permitted  to  show  the  result  of  his  nefarious  acts  as  an 
excuse  for  having  committed  them.^*  But  it  is  held  by  one  court, 
at  least,  that  under  a  statute  making  it  a  crime  for  enticing  an  unmar- 
ried woman  of  chaste  life  to  a  house  of  ill-fame  for  the  purpose  of 
prostitution  the  burden  of  proof  was  on  the  commonwealth  to  show 
that  the  woman  was  of  chaste  life.  The  reason  of  this  was  that  the 
crime  consisted  in  enticing  a  woman  of  chaste  life  to  such  a  place 
and  that  the  chastity  of  the  woman  was  an  essential  ingredient  of  the 
crime.  ^^ 

§  2755.  Presumption  of  previous  chaste  character. — The  previous 
chaste  character  meant  by  the  statutes  generally  on  the  subject  of  the 
abduction  of  females  is  not  required  to  be  substantiated  by  proof  on 

"Carpenter  v.  People,  8  Barb.  (N.  N.  E.  652;  State  v.  Curran,  51  Iowa 

Y.)   603;   State  v.  Deitrick,  51  Iowa  112,  49  N.  W.  1006;  State  v.  Higdon, 

467,  1  N.  W.  732;  State  v.  Dunn,  53  32  Iowa  262;  Polk  v.  State.  40  Ark. 

Iowa  526,  5  N.  W.  707.  482;   Scruggs  v.  State,  90  Tenn.  81, 

'^  Scruggs  v.  State.  90  Tenn.  81,  15  15  S.  W.  1074. 

S.  W.  1074.  "^^  Commonwealth     v.     Whittaker, 

"Slocum    y.    People,   90    111.    274;  131  Mass.  224. 
Bradshaw  v.  People,  153  111.  156,  38 


61  PREVIOUS   UXCHASTITY.  [§    2756. 

the  part  of  the  prosecution  in  the  first  instance.  The  law  presumes 
such  previous  chaste  character,  and  this  presumption  is  said  to  be  of 
probative  force.  While  it  is  a  presumption  of  law,  yet  it  may  be  dis- 
puted or  rebutted.  In  speaking  of  an  instruction  which  treated  it  so, 
Judge  Cooley  said :  "The  presumptions  of  law  should  be  in  accordance 
with  the  general  fact;  and  whenever  it  shall  be  true  of  any  country, 
that  the  women,  as  a  general  fact,  are  not  chaste,  the  foundations  of 
civil  society  will  be  wholly  broken  up.  Fortunately,  in  our  own  coun- 
try an  unchaste  female  is  comparatively  a  rare  exception  to  the  gen- 
eral rule;  and  whoever  relies  upon  the  existence  of  the  exception  in 
a  particular  case  should  be  required  to  prove  it."^® 

§  2756.  Proof  of  previous  unchastity  as  a  defense. — It  has  been 
held  in  some  jurisdictions  that  on  a  charge  of  abducting  a  female 
under  the  prohibited  age  it  is  a  sufficient  defense  to  prove  her 
generally  bad  reputation  for  chastity,  and  that  she  had  in  fact  pre- 
viously been  unchaste.^^  In  one  case  it  was  held  proper  to  permit 
evidence  of  previous  character  for  chastity  as  having  a  material  bear- 
ing upon  the  question  whether  the  girl  was  enticed  or  persuaded  from 
the  control  of  her  parents  or  whether  she  went  of  her  own  accord, 
and  with  the  knowledge  and  consent  of  her  parents. ^^  But  the  weight 
of  authority  as  well  as  reason  and  good  sense  are  opposed  to  this 
view.  Such  a  view  could  only  be  upheld  where  the  statute  ex- 
pressly provided  that  such  person  was  of  previous  chaste  character; 
1)ut  it  is  clear  that  such  an  idea  cannot  be  read  into  the  statute  where 
it  is  an  absolute  prohibition  within  a  specified  age.  The  purpose  of 
such  a  statute  is  not  only  to  protect  the  chaste,  but  to  reclaim  the 
erring;  it  is  intended  as  a  guarantee  to  the  parents  and  guardians  of 
the  safe  custody  and  care  of  girls  within  the  prohibited  age  witliout 
regard  to  their  reputation  for  chastity.  To  permit  a  wretch  who 
has  induced  or  enticed  a  young  girl  from  her  parents  for  the  un- 
lawful purpose  contemplated  by  the  statute  to  Justify  his  nefarious 

=«  People  v.  Brewer,  27  Mich.  134;  "Jenkins  v.  State,  15  Lea  (Tenn.) 

Polk  V.  State,  40  Ark.  482;   Wilson  674;   Scruggs  v.  State,  90  Tenn.  81, 

V.  State,  73  Ala.  527;    Bradshaw  v.  15  S.  W.  1074. 

People,   153   111.  156,   38  N.   B.   652;  ^^  Brown  v.  State.  72  Md.  468.  20 

Andre  v.  State,  5  Iowa  389;  State  v.  Atl.  186;  People  v.  Jenness.  5  Mich. 

Sutherland,   30   Iowa  570;    State  v.  305;  People  v.  Carrier,  46  Mich.  442, 

Higdon,  32  Iowa  262;   State  v.  Cur-  9  N.  W.  487. 
ran,  51   Iowa  112,   49  N.   W.   1006; 
People  v.  Clark,  33  Mich.  112. 


I    2757.]  ABDUCTION.  62 

conduct  by  some  proof  that  she  had  previously  been  unchaste,  not  only 
shocks  the  moral  sensibilities,  but  robs  the  statute  of  its  real  purpose 
and  effectiveness.^® 

§  2757.  CorroboratiV'e  proof. — In  prosecutions  for  abduction,  as 
in  some  other  crimes,  many  of  the  statutes  provide  that  there  can  be 
no  conviction  in  the  absence  of  proof  corroborating  the  testimony 
of  the  prosecuting  witness,  the  injured  person.  Under  such  a  statute 
the  question  naturally  arises  as  to  what  is  meant  by  corroborative 
proof.  The  general  rule  is  that  it  should  tend  to  show  the  material 
facts  necessary  to  establish  the  commission  of  the  crime,  and  the 
identity  of  the  person  committing  it.  In  other  words,  the  corrobora- 
tion must  extend  to  every  material  fact  essential  to  constitute  the 
crime.  The  Court  of  Appeals  of  New  York  stated  the  rule  as  fol- 
lows: "The  policy  of  the  statute  under  consideration  would  seem 
to  forbid  the  conviction  of  a  person  of  the  crime  of  abduction,  upon 
the  unsupported  evidence  of  the  subject  of  the  crime,  and  a  conviction 
founded  upon  the  evidence  of  the  abducted  female  alone  as  to  one  of 
the  elements  constituting  the  crime,  would  be  contrary  to  its  implied 
prohibition.  Such  evidence  must,  therefore,  tend  to  prove  each  of 
the  facts  constituting  the  crime,  for  otherwise  a  person  might  be  con- 
victed of  an  offense  as  to  one  of  whose  elements  there  existed  no  proof 
except  that  of  the  alleged  abducted  female.  If  the  corroborative  evi- 
dence goes  to  the  support  of  the  alleged  purpose  alone  it  is  ap- 
parent that  there  is  no  legal  proof  of  the  commission  of  a  crime,  and 
it  would  be  the  same  if  the  corroboration  was  confined  to  a  support 
of  the  taking  alone,  and  the  proof  as  to  the  purpose  was  uncor- 
roborated. It  is  indispensable  that  such  corroboration  should  be  fur- 
nished by  positive  and  direct  evidence,  but  proof  of  circumstances 
legitimately  tending  to  show  the  existence  of  the  material  facts  will 
be  sufficient  to  authorize  a  conviction.  In  one  form  or  the  other, 
however,  proof  must  be  given,  aside  from  that  of  the  female,  tending 
to  establish  the  commission  of  a  crime,  and  that  it  was  perpetrated 
by  the  person  accused  before  a  conviction  can  be  lawfully  had 


»60 


=' People  v.  Cook.  61  Cal.  478;  Peo-  328,  32  S.  W.  1149;  Scruggs  v.  State, 

pie  V.   Demousset,   71   Cal.   611,   12  90  Tenn.  81,  15  S.  W.  1074;    South 

Pac.  788;   People  v.  Fowler,  88  Cal.  v.  State,  97  Tenn.  496,  37  S.  W.  210; 

136,   25   Pac.    1110;    People   v.   Car-  Griffin  v.  State,  109  Tenn.  17,  70  S. 

rier,    46    Mich.    442,    9    N.   W.    487;  W.  61. 

State  V.   Gibson,  111  Mo.  92,  19   S.  ^  People  v.  Plath,  100  N.  Y.  5S0. 

W.   980;    State  v.   Bobbst,   131   Mo.  3  N.  E.  790;  People  v.  Kearney,  110 


63 


CORROBORATION. 


[§  2757. 


The  corroborativG  testimony  required  may  be  supplied  by  proof  of  cir- 
cumstances which  are  sufficient  to  raise  a  presumption  of  the  exist- 
ence of  the  essential  elements  of  a  crime.® ^  It  is  not  essential,  how- 
ever, that  the  corroborative  evidence  in  itself  be  sufficient  to  estab- 
lish the  guilt  of  the  accused.''-  The  rule  does  not  require  that 
the  corroboration  extend  to  the  testimony  of  the  female  on  the  ques- 
tion of  her  previous  chastity  or  to  the  fact  that  she  was  unmarried.®^ 


N.  Y.  188,  17  N.  E.  736;  People  v. 
Page,  162  N.  Y.  272,  56  N.  E.  750; 
People  v.  Brandt,  14  N.  Y.  St.  419; 
People  v.  Brown,  71  Hun  (N.  Y.) 
601,  24  N.  Y.  S.  1111;  State  v.  Tim- 
mens,  4  Minn.  325;  State  v.  Brink- 
haus,  34  Minn.  285,  25  N.  W.  642; 
State  V.  Wenz,  41  Minn.  196,  42  N. 
W.  933;  State  v.  Keith,  47  Minn. 
559,  50  N.  W.  691;  1  Greenleaf  Ev., 
§  381;  Russell  Crimes  962;  Under- 
bill Cr.  Ev.,  §  74. 


*^  Andre  v.  State,  5  Iowa  389; 
State  V.  Bell,  79  Iowa  117,  44  N.  W. 
244;  State  v.  Lauderbeck,  96  Iowa 
258,  65  N.  W.  158;  State  v.  Bess, 
109  Iowa  675,  81  N.  W.  152. 

«=  State  V.  Keith,  47  Minn.  559,  50 
N.  W.  691. 

•^Kenyon  v.  People,  26  N.  Y.  203; 
People  V.  Kearney,  110  N.  Y.  188, 
17  N.  E.  736. 


CHAPTEK  CXXIX. 

ABORTIOX. 

Sec.  Sec. 

2758.  Definition  and  meaning.  2765.  Proof     of    nature    of    means 

2759.  Common-law     and     statutory  used. 

offense— Distinction.  2766.  Proof  of  pregnancy. 

2760.  Proof  of  intent.  2767.  Proof  of  opportunities  and  fa- 

2761.  Attempt   to   produce — Intent.  cilities. 

2762.  Proof  of  motive.  2768.  Proof  of  similar  acts. 

2763.  Advising    or    administering—  2769.  Corroborative  proof. 

Proof  sufficient.  2770.  Dying  declarations. 

2764.  Effect     on     woman— Consent,     2771.  Necessity  for  producing  abor- 

etc.  tion — Burden     of      proving 

negative  averment. 

§2758.  Definition  and  meaning.— The  crime  usually  designated 
by  the  term  abortion  in  this  country  is  wholly  statutory  and  it  is 
seldom,  if  ever,  designated  or  described  by  the  use  of  the  word  or 
term  "abortion."  The  term  is  simply  used  as  a  substitute  for  the 
particular  or  statutory  description  of  a  well-known  offense.  The 
Supreme  Court  of  Iowa  thus  speak  of  it:  "By  abortion  we  under- 
stand the  act  of  miscarrying  or  producing  young  before  the  natural 
time,  or  before  the  foetus  is  perfectly  formed.  And  to  cause  or  pro- 
duce an  abortion,  is  to  cause  or  produce  the  premature  bringing  forth 
of  this  fcetus."^  And  the  Supreme  Court  of  Oregon  gives  it  sub- 
stantially the  same  meaning:  "The  term  itself  does  not  import  a 
crime.  It  simply  means,  according  to  Webster,  the  act  of  miscarry- 
ing, the  expulsion  of  an  immature  product  of  conception,  miscar- 
riage ;  the  immature  product  of  an  untimely  birth.  And  an  eminent 
law  writer  defines  it  to  be  the  act  of  bringing  forth  what  is  yet  im- 
perfect; and  particularly  the  delivery  or  expulsion  of  the  human 
foetus  prematurely,  or  before  it  is  yet  capable  of  sustaining  life."^ 


^Abrams  v.  Foshee,  3   Iowa  274;      &c.  Ins.  Co.,  191  Pa.  St.  207,  43  Atl. 
Mills  v.  Commonwealth,  13  Pa.  St.     126. 

627,    633;    Wells    v.    New    England,         ^  Belt  v.    Spaulding,   17   Ore.    130, 

20  Pac.  827. 
64 


65  COMMON    LAW   AND   STATUTORY   OFFENSE.  [§    2759. 

§  2759.  Common  law  and  statutory  offense — Distinction. — There 
is  a  very  clear  distinction  between  the  common  law  and  the  statutory 
crime  in  this  country.  Under  the  common  law  in  order  to  establish 
the  offense  the  proof  must  show  that  the  woman  was  quick  or  great 
with  child;  that  is,  it  must  be  established  that  there  was  foetal  life 
before  there  could  be  an  indictable  offense.  Following  the  common 
law  doctrine  and  in  the  absence  of  statute  in  some  jurisdictions  in 
this  country  it  has  been  held  that  an  attempt  made  to  cause  or  pro- 
duce an  abortion,  if  made  with  the  consent  of  the  woman  and  where 
she  is  not  quick  with  child,  was  not  indictable;  as  the  woman's  con- 
sent was  held  to  take  away  the  criminal  character  of  the  assault.^ 
The  same  distinction  was  recognized  in  the  earlier  legislation  of  this 
country  upon  this  subject,  and  is  still  recognized  by  the  laws  of 
some  countries  in  that  the  punishment  is  more  severe  if  committed 
after  the  quickening  than  before.  But  the  statutes  generally  through- 
out the  United  States  now  provide  in  substance  that :  "If  any  person 
shall  administer  to  any  woman  pregnant  with  a  child,  any  medicine, 
drug,  or  substance  whatever,  or  shall  use  or  employ  any  instrument  or 
other  means,  with  intent  thereby  to  destroy  such  child,  unless  the  same 
shall  be  necessary  to  preserve  the  life  of  such  mother,  such  person  shall, 
in  case  the  death  of  such  child  or  mother  be  thereby  produced,  be 
deemed  guilty  of  manslaughter."*  And  under  such  statutes  it  is  now 
the  general,  if  not  the  universal,  rule  that  it  is  neither  necessary  to 
aver  nor  to  prove  that  the  woman  had  become  quick  with  child. ^  Nor 
is  it  necessary  to  show  that  the  child  was  alive,  or  that  it  was  born 

2  State  v.  Cooper,  22  N.  J.  L.  52;  How.  Pr.  (N.  Y.)  222;  Eggart  v. 
State  v.  Reed,  45  Ark.  333;  Com-  State,  40  Fla.  527,  25  So.  144;  Com- 
monwealth V.  Bangs,  9  Mass.  387,  monwealth  v.  Taylor,  132  Mass. 
388;  Commonwealth  v.  Parker,  9  261;  State  v.  Owen,  22  Minn.  238; 
Mete.  (Mass)  263;  Smith  v.  State,  State  v.  Morrow,  40  S.  Car.  221,  18 
33  Me.  48;  State  v.  Howard,  32  Vt.  S.  B.  853;  Watson  v.  State,  9  Tex. 
380;  United  States  v.  Ross,  1  Gal.  Cr.  App.  237;  State  v.  Reed,  45  Ark. 
(U.  S.)  624;  State  v.  Alcorn,  7  Ida-  333;  State  v.  Lee,  69  Conn.  186,  37 
ho  599,  64  Pac.  1014;  People  v.  Ses-  Atl.  75;  McCaughey  v.  State,  156 
sions,  58  Mich.  594.  26  N.  W.  291;  Ind.  41,  59  N.  E.  169;  People  v.  Ab- 
State  V.  Fitzporter,  93  Mo.  390,  6  bott,  116  Mich.  263,  74  N.  W.  529; 
S.  W.  223;  State  v.  Emerich,  13  Mo.  State  v.  Dickinson,  41  Wis.  299. 
App.  492;  State  v.  Murphy,  27  N.  "Mills  v.  Commonwealth,  13  Pa. 
J.  L.  112;  Evans  v.  People,  49  N.  St.  627,  631;  State  v.  Fitzgerald,  49 
Y.  85;  State  v.  Dickinson,  41  Wis.  Iowa  260;  Commonwealth  v.  Wood, 
299.  11  Gray  (Mass.)  85;  Smith  v.  State, 

*Belt  V.    Spaulding,    17   Ore.    130,  33  Me.  48. 
20    Pac.    827;    Butler    v.    Wood,    10 

Vol.  4  Elliott  Ev. — 5 


§   2760.]  ABORTION.  66 

alive,  or  dead ;  nor  whether  the  woman  died  as  a  result  of  the  opera- 
tion.*^ The  distinction  in  this  country  has  been  carried  to  the  extent 
of  holding  in  a  slander  suit  that  no  crime  was  imputed  by  a  charge 
of  abortion.' 

§  2760.  Proof  of  intent. — As  in  most  crimes  the  intent  constitutes 
the  gist  of  the  action,  and  to  establish  a  conviction  it  is  essential  to 
prove  the  intent ;  or  where  poison  or  other  substances  are  administered 
or  means  used  it  must  be  with  the  intent  to  produce  miscarriage,  and 
this  the  proof  must  clearly  establish.  A  person  indicted  for  ad- 
ministering a  drug  or  doing  any  other  like  act  with  intent  to  procure 
an  abortion  may  be  convicted  where  the  proof  shows  either  that  the 
attempt  was  unsuccessful  or  successful,  as  the  attempt  with  the 
intent  completes  the  offense  regardless  of  the  result.^  On  this  subject 
the  Supreme  Court  of  Illinois  say :  "A  felonious  and  malicious  intent 
to  cause  a  miscarriage  being  charged  in  the  indictment,  circum- 
stances sufficient  to  satisfy  the  jury  of  the  intent  should  be  shown. 
A  criminal  offense  consists  in  a  violation  of  a  public  law,  in  the 
commission  of  which  there  must  be  a  union  or  joint  operation  of  act 
and  intention,  or  criminal  negligence,  and  the  intention  is  manifested 
by  the  circumstances  connected  with  the  perpetration  of  the  offense, 
and  the  sound  mind  and  discretion  of  the  person  accused."^  The 
intent  may  be  established  by  proof  of  the  directions  for  the  means  or 
instrument.^"  Any  declarations  or  acts  either  prior  or  subsequent  to 
the  alleged  abortion,  tending  to  show  the  defendant's  purpose  or  inten- 
tion to  produce  the  abortion,  are  generally  admissible  in  evidence.  And 
proof  of  a  subsequent  attempt  by  the  accused  to  accomplish  the  same 
purpose  by  different  means  is  admissible  to  show  the  intent  with  which 
he  attempted  the  first  act,  as  well  as  to  corroborate  the  evidence  of  the 
first  attempt."  So  it  is  competent  to  prove  possession  and  use  of 
business  cards,  circulars  or  advertisements  which  fairly  indicate  or 

^Commonwealth     v.      Wood,      11  Pac.   410;    Commonwealth  v.   W.,   3 

Gray   (Mass.)   85.  Pitts.     (Pa.)     462;     State    v.    Moot- 

'Abram   v.   Foshee,   3   Iowa  274;  hart,  109  Iowa  130,  80  N.  W.  301; 

Belt  V.   Spaulding,   17   Ore.   130,   20  State   v.    Hollenbeck,   36    Iowa  112; 

Pac.  827.  State  v.  Fitzgerald,  49   Iowa  260. 

« People  V.  Josselyn,  39  Cal.  393;         «  Slattery  v.  People,  76  111.  217. 
Dougherty   v.   People,   1    Colo.    514;         "  State  v.  Moothart,  109  Iowa  130, 

Slattery  v.  People,  76  111.  217;  State  80  N.  W.  301;  Jones  v.  State,  70  Md. 

V.  Drake,  30  N.  J.  L.  422;   Powe  v.  326,   17   Atl.   89;    Commonwealth   v. 

State,    48   N.   J.   L.   34,   6   Atl.    662;  Holmes,  103  Mass.   440. 
State  V.   Clements,  15   Ore.   237,  14         "Dougherty    v.    People,    1    Colo. 


67  ATTEMPT — INTENT.  [§  2761. 

from  which  it  might  be  understood  that  the  defendant  held  himself 
out  and  was  ready  to  perform  the  acts  of  the  kind  charged. ^- 

§  2761.  Attempt  to  produce — Intent. — The  statutes  are  generally 
designed  to  punish  any  attempt  to  procure  the  miscarriage  of  females 
with  an  unlawful  intent  as  much  as  if  the  result  was  actually  ac- 
complished. And  proof  of  an  attempt  to  do  so  with  such  unlawful 
intent  establishes  the  crime.  This  rule  has  been  carried  to  the  ex- 
tent of  holding  that  where  an  attempt  has  been  made  with  such  un- 
lawful intent,  it  is  not  necessary  even  that  the  woman  should  be 
pregnant  with  child;  this  is  wholly  immaterial  and  it  is  not  neces- 
sary that  any  proof  be  offered  on  the  subject,  and  the  result  is  the 
same  if  the  proof  wholly  fail  to  establish  the  fact  of  pregnancy. ^'"^ 
If  there  exists  in  the  mind  a  fully  formed  belief  that  the  woman 
was  pregnant  it  is  sufficient;  or  if  there  is  a  suspicion  of  preg- 
nancy and  the  attempt  is  made  the  statute  is  satisfied.^*  It  is  held 
in  some  cases  that  an  attempt  to  produce  an  abortion  by  the  use  of  in- 
struments, when  it  is  not  necessary  to  preserve  the  life  of  the  woman, 
is  such  an  unlawful  act  that  the  law  will  infer  the  criminal  intent 
from  the  act.^^  The  offense  is  sufficiently  established  if  the  proof 
shows  that  the  attempt  was  made  any  time  during  pregnancy.^^ 
Where  the  proof  establishes  the  criminal  intent  the  fact  that  the  sub- 
stance used  would  not  produce  a  miscarriage  was  held  to  be  no  de- 
fense.^'' Neither  is  it  necessary  to  show  that  the  attempt  had  the 
intended  result;  nor,  it  seems,  that  the  thing  administered  or  the  in- 

514;    Lamb  v.  State,  66  Md.  285,  7  319;  Reg.  v.  Goodchild,  2  Car.  &  Kir. 

Atl.  399.     See  also,  State  v.  Alcorn,  293;   Smith  v.  State,  33  Me.  48;  for 

7  Idaho  599,  64  Pac.  1014;   Reg.  v.  a  valuable  note  on  the  question  of 

Dale,  16  Cox  Cr.  Cas.  703;   Reg.  v.  "attempt    to    commit    crime,"    see, 

Calder,   1   Cox   Cr.   Cas.   348;    post,  People  v.  Moran,  123  N.  Y.  254,  25 

§  2768.  N.  E.  412,  20  Am.  St.  741;  see.  State 

*^  Commonwealth    v.    Bishop,    165  v.  Springer,  3  Ohio  N.  P.  120. 

Mass.   148,   42  N.  E.   560;    Common-  "  Powe  v.  State,  48  N.  J.  L.  34,  6 

wealth  V.  Barrows,  176  Mass.  17,  56  Atl.  662. 

N.   E.   830;    Weed  v.   People,   56   N.  '^^  Scott  v.  People,  141  111.  195,  30 

Y.  628.  N.    E.    329;    State   v.    Slagle,    83    N. 

"  Eggart  V.  State,  40  Fla.  527,  25  Car.  630. 

So.   144;    Commonwealth  v.  Taylor,  "State    v.    Fitzgerald,    49     Iowa 

132  Mass.  261;   Scott  v.  People,  141  260. 

111.    195,    30    N.    E.    329;      State    v.  "State    v.     Fitzgerald,     49     Iowa 

Crews,    128    N.    Car.    581,    38    S.    E.  260;    State   v.    Moothart,    109    Iowa 

293;    Wilson   v.    State,    2    Ohio    St.  130,  80  N.  W.  301. 


§§  2763,  2763.]  abortion.  68 

strument  used  should  be  of  such  a  character  as  is  likely  to  produce 
such  results.^ ^  "The  guilt  of  the  defendant  is  not  graded  by  the  suc- 
cess or  failure  of  the  attempt.  It  is  immaterial  whether  the  foetus  is 
destroyed,  or  whether  it  has  quickened  or  not."^®  So  an  attempt  may 
be  proved  by  showing  the  administration  of  drugs.^* 

§  2762.  Proof  of  motive. — As  crimes  are  seldom  committed  with- 
out some  motive  on  the  part  of  the  accused,  it  is  always  regarded  as 
proper  and  germane  to  make  proof  of  facts  which  obviously  supply 
a  motive.  So  on  a  trial  on  a  charge  of  either  attempting  or  pro- 
curing an  abortion  it  is  proper  and  relevant  as  tending  to  show  a 
motive  for  the  crime  to  prove  prior  illicit  intercourse  and  that  the 
accused  was  the  father  of  the  child.^^ 

§  2763.  Advising  or  administering — Proof  sufficient. — Some  of 
the  statutes  expressly  provide  that  "whoever  unlawfully  administers 
or  advises  or  prescribes  for  any  woman  any  drug,  medicine  or  other 
noxious  thing  with  intent  to  procure  her  miscarriage  will  be  guilty," 
etc.  Under  such  a  statute  it  has  been  held  siifficient  where  the  proof 
showed  that  the  party  accused  simply  advised  or  prescribed  the  taking 
of  some  medicine  or  noxious  drug  unlawfully  and  with  the  intent  and 
purpose  of  producing  the  miscarriage.  It  is  not  necessary  to  prove  that 
the  medicine  was  taken  or  the  noxious  drug  or  instrument  used,  as  it  is 
immaterial  whether  the  advice  was  followed  or  the  prescription  taken 
or  not."  Concerning  the  meaning  and  use  of  the  word  "administered" 
it  has  been  held  that  it  was  "clearly  intended  to  cover  the  whole  ground 
named,  making  it  an  offense  to  give,  furnish,  supply,  provide  with, 
or  cause  to  be  given,  supplied,  or  provided  with,  or  taken,  any  such 

"State   V.    Owen,    22    Minn.    238;  85;    State  v.  Montgomery,  71   Iowa 

State  V.  Gedicke,  43  N.  J.  L.  86.  630,  33  N.  W.  143;  State  v.  Moothart, 

^»  State    v.    Murphy,    27    N.    J.    L.  109  Iowa  130,  80  N.  W.  301;   People 

112.  v.  McDowell,  63  Mich.  229,  30  N.  W. 

^  State  V.  Morrow,  40  S.  Car.  221,  68. 
18  S.  E.  853.  "  Eggart  v.  State,  40  Fla.  527,  25 

^Commonwealth    v.    W..    3    Pitts.  So.  144;    State  v.  Murphy,  27  N.  J. 

(Pa.)  462;  Dunn  v.  People,  29  N.  Y.  L.  112;    State  v.  Hyer,  39  N.  J.  L. 

523;  Crichton  v.  People,  1  Abb.  Dec.  598;    State   v.    Crews,    128    N.   Car. 

(N.   Y.)    467;    Scott   v.   People,    141  581,  38  S.  E.  293;   Robbins  v.  State, 

111.  195,  30  N.  E.  329;   State  v.  Mc-  8  Ohio  St.  131;  State  v.  Gedicke,  43 

Leod,   136   Mo.   109,   37    S.   W.    828;  N.  J.  L.  86;   State  v.  Morrow,  40  S. 

Commonwealth   v.   Wood,   77   Mass.  Car.  221,  18  S.  E.  853. 


69  EFFECT — CONSENT.  [§  2764. 

drug,  medicine  or  substance  witli  tlie  intent  of  either  result  named 
in  said  section.  And  such  word  embraced  and  was  intended  to  em- 
brace every  mode  of  giving,  furnishing,  supplying,  providing  with, 
or  causing  to  be  taken  any  such  drug,  medicine,  or  substance."''^ 
The  rule  as  declared  is,  that  if  the  accused  knew  or  supposed  that 
the  woman  was  pregnant,  and  knew  the  purpose  for  which  she  de- 
sired the  drug,  or  the  noxious  substance,  and  furnished  it  to  her, 
and  thereafter  at  a  time  and  place  when  the  accused  was  not  pres- 
ent she  took  such  drug  or  noxious  substance,  it  was  administered 
by  the  accused,  within  the  meaning  of  such  statute.^*  So  when  the 
proof  showed  that  advice  and  directions  were  sent  by  mail,  for  the 
taking  of  certain  drugs  or  preparations  either  prescribed  or  also 
sent  by  mail,  it  was  held  sufficient  under  a  charge  for  administer- 
ing with  the  unlawful  intent  of  producing  a  miscarriage.'^  But 
where  the  accused  is  charged  with  having  procured  the  miscarriage 
by  means  of  advising  certain  drugs,  it  has  been  held  necessary  to 
prove  that  the  advice  of  the  accused  was  followed  and  the  drug  or 
noxious  substance  actually  taken.  This  rule,  however,  does  not  apply 
on  a  charge  of  an  attempt  to  commit  the  crime.^® 

§  2764.  Effect  on  the  woman — Consent,  etc. — The  offense  under 
the  statutes  of  the  several  states  does  not  necessarily  include  an  as- 
sault. The  act  is  made  criminal  without  regard  to  the  consent  of  the 
person  upon  whom  it  is  performed;  a  defendant  may  be  convicted 
though  the  act  was  performed  with  the  consent  of  the  woman.^^ 
But  under  the  common  law  it  was  not  indictable  where  the  woman 
consented  if  she  was  not  quick  with  child. -^  While  the  consent  of  the 
woman  does  not  affect  the  criminality  of  the  accused,  a  woman  may 
be  guilty  of  a  conspiracy  with  others  to  procure  a  miscarriage  on  her 
own  person.-^   But  a  statute  prohibiting  any  person  from  administer- 

^  McCaughey    v.    State,    156    Ind.  "  Commonwealth     v.     Snow,     116 

41,  59  N.  E.  169.  Mass.  47;    Commonwealth  v.  Wood, 

^*  McCaughey  v.  State,  156  Ind.  41,  11  Gray    (Mass.)    85,  see,  Hatchard 

59  N.  E.  169;  Jones  v.  State,  70  Md.  v.  State,  79  Wis.  357,  48  N.  W.  380. 

326,    17    Atl.    89;    Reg.    v.    Wilson,  ^'^  Commonwealth     v.     Parker,     9 

Dears  &  B.  127.  Mete.    (Mass.)    263. 

==  State  v.  Moothart,  109  Iowa  130,  =*  Solan der  v.  People,  2  Colo.  48; 

80   N.   W.   301;    Jones   v.   State,   70  Frazer  v.  People,  54  Barb.   (N.  Y.) 

Md,  326,  17  Atl.  89.  306;   People  v.  Meyers,  5  N.  Y.  Cr. 

■"  People  V.  Phelps,  133  N.  Y.  267,  120. 
30   N.   E.   1012;    Lamb  v.    State,   67 
Md.  524,  10  Atl.  208. 


§§  2765,  3766.]  abortion.  70 

ing  drugs  to  a  pregnant  woman  was  held  not  to  apply  to  the  woman 
herself.  ^°  And  under  some  statutes  a  woman  is  not  indictable  for 
procuring  an  abortion  upon  herself.^^ 

§  2765.  Proof  of  nature  of  means  used. — The  proof  should  show 
something  of  the  nature  or  kind  of  the  instruments,  drugs  or  other 
things  or  articles  used  for  the  purpose  of  producing  the  abortion.  It 
has  also  been  held  that  the  proof  should  show  that  the  means  or  instru- 
ments implied  were  calculated  to  or  would  produce  the  intended  re- 
sult.^^  Some  cases  hold  that  it  is  not  necessary  to  show  the  char- 
acter of  the  instrument  used.^^  But  under  rules  given  in  another 
section  it  is  immaterial  whether  or  not  the  intended  effect  resulted. 
And  it  has  been  held  that  instructing,  directing,  soliciting  or  inducing 
the  woman  to  take  violent  physical  exercise,  where  a  motive  was 
shown  to  exist,  for  the  purpose  and  with  the  intention  of  thereby 
producing  the  abortion,  was  sufficient.^*  It  is  not  necessary  to  prove 
that  the  drug  or  liquid  administered  was  poisonous ;  or  even  that  it 
should  be  capable  of  producing  the  miscarriage  charged. ^^  It  is  suf- 
ficient if  the  proof  shows  that  the  liquid  or  substance  administered 
was  noxious  or  unwholesome  and  that  it  might  probably  occasion  in- 
jury or  derangement  to  the  system  of  a  woman  who  was  pregnant  with 
child ;  and  this  may  be  inferred  from  the  efEects.^® 

§  2766.  Proof  of  pregnancy. — The  rule  established  by  one  class  of 
cases  is  that  in  prosecutions  under  such  sections  of  the  statute  where 
the  charge  is  an  attempt  to  produce  a  miscarriage  or  abortion  that 
it  is  not  necessary  either  to  aver  in  the  indictment  or  prove  on  the 
trial  of  the  case  that  the  woman  was  in  fact  pregnant.  Such  cases 
evidently  proceed  on  the  theory  that  the  crime  consists  in  the  attempt 
to  do  the  act,  and  that  the  act  itself  is  complete,  regardless  of  the 
actual  condition  of  the  woman  or  the  result  of  the  effort.^'^    Another 

^  Smith  V.  Gaffard,  31  Ala.  45.  ^^  State  v.  Owens,  22  Minn.  238. 

^'^  Hatfield  v.   Gano,   15   Iowa  177.  '"Dougherty    v.    People,    1    Colo. 

'2  Williams  v.  State,    (Tex.)   19  S.  514;     State    v.    Vawter,    7    Blackf. 

W.    897;    Hunter   v.    State,   38   Tex.  (Ind.)   592;   State  v.  Gedicke,  43  N. 

Or.  App.  61,  41  S.  W.  602.  J.   L.   86;    Eggart  v.   State.  40   Fla. 

="  Commonwealth     v.     Snow,     116  527,  25  So.  144;  State  v.  Crews,  128 

Mass.  47;   State  v.  Lilly,  47  W.  Va.  N.  Car.  581,  38  S.  E.  293;   State  v. 

496,  30  S.  E.  837.  Van   Houten,   37   Mo.   357;    Watson 

=*  Commonwealth   v.   W.,   3    Pitts,  v.   State,   9   Tex.   App.   237;    Rex  v. 

(Pa.)    462;   Lamb  v.  State,  67  Md.  Phillips,  3  Campb.  73. 

524,  10  Atl.  208.  "  Commonwealth    v.    Taylor,    132 


71  PROOF    OF    OPPOETUNITY SIMILAR   ACTS.       [§§    27G7,    27G8. 

class  of  cases  establishes  the  rule  that  under  certain  peculiar  charges 
in  the  indictment  or  under  the  peculiar  language  of  the  statute,  it 
is  not  only  necessary  to  prove  that  the  woman  was  pregnant  but  that 
she  was  quick  with  child ;  that  is,  that  the  child  was  alive.  And  this 
rule  has  been  carried  to  the  extent  of  holding  that  under  certain  aver- 
ments in  the  indictment  the  pregnancy  of  the  woman  must  be  es- 
tablished beyond  a  reasonable  doubt.^* 

§  2767.  Proof  of  opportunities  and  facilities. — As  tending  to 
establish  both  the  crime  and  the  intent  with  which  it  was  committed,  it 
is  proper  to  introduce  any  proper  evidence  which  will  prove  or  tend  to 
prove  either  the  opportunity  to  commit  the  crime  or  the  facilities  with 
which  it  might  have  been  committed.  Thus,  it  has  been  held  compe- 
tent and  proper  to  introduce  in  evidence  or  to  exhibit  to  the  jury 
surgical  instruments  adapted  to  use  in  producing  abortion,  found 
in  the  possession  of  the  accused.  So  it  has  been  held  competent  for 
medical  experts  to  testify  that  in  their  opinion  the  instruments  found 
and  exhibited  were  adapted  to  producing  abortion.^^  And  it  has  been 
held  competent  to  introduce  letters  or  written  statements  or  arrange- 
ments by  which  the  accused  and  the  person  upon  whom  the  abortion 
was  alleged  to  have  been  produced  were  to  meet  at  a  certain  place; 
or  evidence  that  they  did  meet  and  were  known  to  be  at  a  place  pe- 
culiarly adapted  to  the  commission  of  such  crime;  such  evidence 
being  admissible  on  the  theory  of  affording  an  opportunity  to  com- 
mit the  crime  charged.**^ 

§  2768.     Proof   of   similar   acts. — The   general   rule   as   to   proof 
of  similar  acts  for  the  purpose  of  showing  guilt  or  guilty  knowledge 

Mass.   261;    Commonwealth   v.   Fol-  Mills  v.  Commonwealth,  13  Pa.   St. 

lansbee,  155  Mass.  274,  29  N.  E.  471;  627,  631. 

Commonwealth     v.     Tibbetts,     157         ^Commonwealth    v.    Brown,    121 

Mass.    519,   32   N.   E.    910;    Reg.   v.  Mass.  69;   Commonwealth  v.  Drake, 

Goodchild,  2  Car.  &  Kir.  293.  124    Mass.    21;     Commonwealth    v. 

^  State  V.   Stewart,   52    Iowa   284,  Blair,  126  Mass.  40;  Commonwealth 

3  N.  W.  99;    State  v.  Alcorn,  7  Ida-  v.  Tibbetts,  157  Mass.  519,  32  N.  E. 

ho    599,    64    Pac.    1014;    Mitchell    v.  910;    People  v.  Vedder,  34  Hun   (N. 

Commonwealth,    78   Ky.    204;    State  Y.)    280;    People  v.  McGonegal,   136 

V.  Smith,  32  Me.  369;   People  v.  Mc-  N.    Y.    62,    32    N.   E.    616;    Weed    v. 

Dowell,  63  Mich.  229,  30  N.  W.  68;  People,  3  Thomp.  &  C.   (N.  Y.)   50; 

People   v.    Aiken,   66   Mich.    460,   33  Moore  v.  State.  37  Tex.  Cr.  App.  552, 

N.  W.  821;    State  v.  Cooper,  22  N.  40   S.   W.   287;    People  v.   Sessions, 

J.  L.  52;   Evans  v.  People.  49  N.  Y.  58  Mich.   594,   26  N.  W.  291. 
86;  Wilson  v.  State,  2  Ohio  St.  319;         «  Hays  v.  State,  40  Md.  633. 


§§  2769,  2770.]  abortion.  72 

applies  in  this  class  of  cases,  and  where  the  charge  was  that  the 
accused  had  unlawfully  used  certain  instruments  with  intent  to 
cause  the  miscarriage  of  the  woman,  it  was  held  proper  to  show  that 
in  addition  to  using  the  instruments  described,  the  accused  had  also 
administered  other  unlawful  treatment  for  the  same  purpose;  it  was 
also  held  proper  and  competent  to  prove  that  he  had  used  the  same 
treatment  on  the  same  woman  on  other  occasions  than  that  named  in 
the  indictment  and  recently  prior  to  the  same  time  charged,  for  the 
purpose  of  showing  both  his  intent  and  his  knowledge  or  belief  of  the 
pregnant  condition  of  the  woman.*^ 

§  2769.  Corroborative  proof. — Under  some  statutes  there  can  be 
no  conviction  unless  the  woman  on  whom  the  operation  was  alleged 
to  have  been  produced  is  corroborated  by  other  testimony  or  circum- 
stances. The  rule  in  this,  as  in  other  such  cases,  is  that  she  must  be 
corroborated  on  every  essential  element  of  the  crime.  And  as  the  in- 
tent is  not  only  an  essential  element  but  the  gist  of  the  offense,  she 
must  be  corroborated  in  this  particular.  As  stated  by  one  court, 
"she  must  also  have  been  corroborated  by  circumstances,  or  otherwise, 
in  at  least  some  portion  of  her  testimony  which  imputes  to  the  de- 
fendant the  commission  of  the  crime  alleged,  to  wit,  in  the  use  of  an 
instrument  with  intent  to  produce  abortion."*^  Under  a  statute 
which  provided  that  a  conviction  should  not  be  had  on  the  evidence 
of  an  accomplice  in  the  absence  of  corroborative  proof,  it  was  held  in 
a  case  where  the  husband  occupied  the  position  as  accomplice  in 
causing  the  death  of  his  wife  by  consenting  to  an  abortion,  that  the 
dying  declarations  of  the  wife  supporting  the  statements  of  the  hus- 
band were  sufficient  corroborative  proof  to  sustain  a  conviction.*^ 
But  where  the  record  does  not  affirmatively  show  that  there  was  no 
corroborative  evidence,  and  where  it  does  not  purport  to  contain  all 
the  evidence  upon  that  point,  the  presumption  of  law  is  that  there 
was  sufficient  competent  evidence  to  support  the  verdict.** 

§  2770.  Dying  declarations. — The  general  rule  as  to  the  admissi- 
bility of  dying  declarations  does  not  apply  wholly  in  cases  of  abor- 

« Commonwealth  v.  Corkin,  136  King  v.  State,  (Tex.)  34  S.  W.  282; 
Mass.    429;    People   v.   Sessions,   58     see,  §  2760. 

Mich.  594,  26  N.  W.  291;  Scott  v.  « People  v.  Josselyn,  39  Cal.  393. 
People,  141  111.  195,  30  N.  E.  329;  ^^  State  v.  Pearce,  56  Minn.  226, 
Maine  v.  People,  9  Hun  (N.  Y.)  113;     57  N.  W.  652. 

**  State  V.  Owens,  22  Minn.  238. 


73  DYING  DECLARATIONS.  [§  2771. 

tion.  Generally  speaking  and  according  to  many  cases,  in  this  class, 
such  evidence  is  not  admissible.'*^  Tlie  rule  excluding  such  declara- 
tions is  based  on  the  fact  that  death  is  not  an  essential  ingredient  of 
the  crime.  And  where  the  death  of  the  woman  is  not  such  essential 
ingredient  of  the  crime  such  declarations  are  not  admissible.  The 
statutory  crime  of  abortion  in  many  states,  as  at  common  law,  is  com- 
plete without  the  death  of  the  woman.  In  such  cases  the  proof  of 
death  where  it  ensues  is  not  so  much  to  determine  the  character  of  the 
crime  as  to  determine  the  penalty  to  be  inflicted  on  the  criminal.*" 
But  where  the  death  of  the  woman  is  an  essential  element  in  the  of- 
fense as  charged,  her  dying  declarations  may  be  introduced  in  evi- 
dence.*'^ So,  it  may  be  given  as  a  general  rule  that  in  prosecution  for 
homicide  produced  or  caused  by  an  abortion,  the  dying  declarations 
of  the  deceased  are  admissible  in  evidence.*^ 

§  2771.  Necessity  for  producing  abortion — ^Burden  of  proving 
negative  averment. — The  statutes  creating  this  offense  generally  con- 
tain an  exception  that  it  is  not  a  crime  if  done  in  order  to  save  hu- 
man life.  It  has  been  held  that  this  exception  in  the  statute  must  be 
negatived  in  the  indictment  and  it  must  be  proved  on  the  trial  and 
that  the  burden  of  proving  such  a  negative  averment  is  upon  the  state. 
But  it  has  been  held  that  this  rule  does  not  require  proof  beyond  a  rea- 
sonable doubt,  but  it  is  sufficient  if  such,  negative  averment  is  made  out 
by  a  prima  facie  case.  The  rule  on  this  subject  was  stated  by  the  Con- 
necticut court  as  follows :  "The  want  of  necessity  was  an  element  of 
the  crime  as  charged  in  the  information,  as  much  so  as  the  act  or 

« Montgomery    v.    State,    80    Ind.  542,   33    Atl.    312;    State   v.    Alcorn, 

338;  Wooten  v.  Wilkins,  39  Ga.  223;  7  Idaho  599,  64  Pac.  1014;   State  v. 

Rex  V.  Lloyd,  4  Car.  &  P.  233;  Reg.  Leeper,  70  Iowa  748,  30  N.  W.  501; 

V.  Hind,  8  Cox  Cr.  Cas.  300;  Reg.  v.  State  v.   Baldwin,   79    Iowa  714,   45 

Edwards,  12  Cox  Cr.  Cas.  230.  N.    W.    297;     People    v.     Common- 

*"  Montgomery    v.    State,    80    Ind.  wealth,    87    Ky.    488,    9    S.   W.    509; 

338;    Worthington  v.   State,   92  Md.  Worthington   v.    State,   92   Md.   222, 

222,  48  Atl.  355;    Commonwealth  v.  48     Atl.     355;      Commonwealth     v. 

Homer,  153  Mass.  343,  26  N.  E.  872;  Thompson,   159   Mass.   56,   33   N.   E. 

People  V.  Davis,  56  N.  Y.  95;   State  1111;    People  v.  Olmstead,  30  Mich. 

V.  Harper,  35  Ohio  St.  78;   Railing  431;    State  v.  Pearce,  56  Minn.  226, 

V.   Commonwealth,  110  Pa.  St.  100,  57  N.  W.  652;  Donnelly  v.  State,  26 

1  Atl.  314;  State  v.  Pearce,  56  Minn.  N.  J.  L.  601;   State  v.  Meyer,  65  N. 

226,  57  N.  W.  652.  J.    L.    237,    47    Atl.    486;    Maine    v. 

"Montgomery    v.    State,    80    Ind.  People,   9   Hun    (N.  Y.)    113;    State 

338;  ante.  Vol.  I,  §  353.  v.  Dickinson,  41  Wis.  299. 

«  State  V.  Lodge,  9  Houst.  (Del.) 


g    2T71.]  ABORTION.  '^■^ 

intent  charged ;  and  the  burden  of  proving  the  former  as  well  as  the 
latter  elements  rests  upon  the  state  for  the  same  reason,  namely,  be- 
cause under  our  law  it  is  the  duty  of  the  state  to  prove  guilt  and  not 
that  of  the  accused  to  prove  innocence.  .  .  .  The  truth  of  this  neg- 
ative averment  as  part  of  the  state's  case  must  in  some  way  be  made 
prima  facie  to  appear  at  the  trial ;  but  it  need  not  necessarily  be  so 
made  to  appear  by  evidence.  For  instance,  where  there  is  a  pre- 
sumption of  law  in  favor  of  the  truth  and  averment  of  this  kind,  the 
state  may  in  the  first  instance,  and  until  evidence  to  the  contrary  is 
introduced  by  the  defendant,  rest  upon  the  presumption,  just  as  it 
might  upon  evidence  sufficient  to  make  out  a  prima  facie  case.  In  such 
a  case  the  burden  of  proving  the  averment  still  rests  upon  the  state, 
but  by  the  presumption  it  is  relieved  for  the  time  being  from  intro- 
ducing evidence  in  support  of  the  averment,  because  the  presumption 
under  such  circumstances  stands  in  the  place  of  evidence."*^  Where 
the  exception  in  the  statute  further  provides  that  the  act  must  be  done 
on  the  advice  of  a  physician,  the  rule  is  established  in  some  cases  that 
while  it  is  necessary  for  the  state  to  produce  some  evidence  that  the 
abortion  was  unnecessary  to  save  the  life  of  the  mother,  the  burden  of 
showing  that  it  was  advised  by  a  physician  to  be  necessary  for  that 
purpose,  is  upon  the  defendant.^''  So,  it  is  held  that  this  absence  of 
necessity  may  be  proved  by  circumstantial  evidence  sufficient  to  dem- 
onstrate that  the  instrument  or  means  was  not  employed  because  of 
necessity.  ^^ 

"State  V.  Lee,   69   Conn.   186,   37  17   Ohio   St.    110;    State  v.   Barker, 

Atl.   75;    Beasley  v.   People,   89   111.  18  Vt.   195;    Hatchard   v.   State,   79 

571;    State  v.  Aiken,  109  Iowa  643,  Wis.   357,   48   N.   W.   380;    but   see, 

80  N.  W.  1073;   State  v.  Watson,  30  State  v.  Clements,  15   Ore.  237,  14 

Kans.  281;   Commonwealth  v.  Hart,  Pac.  410. 

11    Cush.     (Mass.)     130;     State    v.         ™  State    v.    Meek,    70    Mo.    355; 

Hirsch,  45  Mo.  429;   State  v.  Meek,  Moody  v.  State,  17  Ohio  St.  110. 
70  Mo.' 355;   State  v.  Fitzporter,  93        =' Bradford     v.     People,     20     Hun 

Mo.    390,    6    S.    W.    223;    State    v.  (N.  Y.)   309;   People  v.  McGonegal, 

Schuerman,  70  Mo.  App.  518;  Brad-  10  N.  Y.  Cr.  141,  17  N.  Y.  S.  147; 

ford  v.  People,  20  Hun  (N.  Y.)  309;  Hatchard  v.  State,  79  Wis.  357,  48 

People  V.  McGonegal,  10  N.  Y.  Cr.  N.  W.  380. 
141,  17  N.  Y.  S.  147;  Moody  v.  State, 


CHAPTER  CXXX. 


ACCESSORIES. 


Sec. 

2772.  Definition. 

2773.  Principals  and  accessories. 

2774.  Accessory  before  the  fact. 

2775.  Accessory  after  the  fact. 

2776.  Accessory  during  the  fact. 

2777.  Proof  of   principal's  guilt. 

2778.  Proof    of    principal's    guilt- 

Record   of   conviction. 

2779.  Effect  of  acquittal. 

2780.  Proof    of    principal's    guilt- 

Confession. 

2781.  Accessory    before    the    fact- 

Proof  of  guilt. 


Sec. 

2782. 

2783. 


2784. 

2785. 
2786. 
2787. 


Proof  of  advising  or  partici- 
pating. 

Crime  by  principal  must  be 
in  purview  of  accessory's 
advice. 

Accessory  after  the  fact — 
Proof  sufficient  to  consti- 
tute. 

Accessory  and  accomplice — 
•  Distinction. 

Evidence  of  accomplice  — 
Corroboration. 

Evidence  of  accessory — Cor- 
roboration. 


§  2772.  Definition. — The  definition  of  an  accessory  as  given  by 
Mr.  Blackstone  is  generally  conceded  to  be  correct  and  is  almost  uni- 
versally followed.  In  defining  it  he  says:  "An  accessory  is  he  who 
is  not  the  chief  actor  in  the  offense  nor  present  at  its  performance, 
but  is  in  some  way  concerned  therein,  either  before  or  after  the  af- 
fair."^  On  this  subject  Mr.  Wharton  says:  "To  constitute  such  an 
accessory,  it  is  necessary  that  he  should  have  been  absent  at  the  time 
when  the  felony  was  committed;  if  he  was  either  actually  or  con- 
structively present,  he  is,  as  has  been  seen,  a  principal."-  'Wliatever 
the  resemblance  between  principal  and  accessories,  it  is  the  well  es- 
tablished rule,  where  not  changed  by  statute,  that  a  person  cannot  be 
indicted  as  a  principal  and  convicted  on  proof  showing  him  to  be  only 
an  accessory.^ 


'4  Blackstone  Comm.  35;  United 
States  V.  Hartwell,  3  Cliff.  (U.  S.) 
221. 

-1  Wharton  Cr.  Law,  §  225;  3 
Greenleaf  Ev.  42. 

'1  Wharton  Cr.  Law,  §  114,  208; 
Hughes  V.  State,  12  Ala.  458;  Able 
V.    Commonwealth,    5    Bush    (Ky.) 


698;  Josephine  v.  State,  39  Miss. 
613;  Walrath  v.  State,  8  Neb.  80; 
State  V.  Larkin,  49  N.  H.  39;  State 
V.  Wyckoff,  31  N.  J.  L.  65;  Rex  v. 
Fallon,  9  Cox  Cr.  Cas.  242;  but  un- 
der some  statutes  this  is  not  the 
rule;   Yoe  v.  People,  49  111.  410. 


75 


§§  2773,  2774.]  accessories.  76 

§  2773.  Principals  and  accessories. — Some  writers  make  practi- 
cally no  distinction  between  principals  in  the  second  degree  and  ac- 
cessories. If  any  distinction  is  made  it  seems  to  be  in  the  cases  where 
the  principal  in  the  second  degree  was  physically  present;  whereas 
it  is  sufficient  if  an  accessory  is  only  constructively  present.  Mr. 
Wharton  says:  "Principals  in  the  second  degree  are  those  who  are 
present,  aiding  and  abetting  at  the  commission  of  the  fact.  To  con- 
stitute principals  in  the  second  degree,  there  must  be,  in  the  first 
place,  a  participation  in  the  act  committed;  and  in  the  second  place, 
presence  either  actual  or  constructive,  at  the  time  of  its  commission."* 
The  rule  has  been  extended  to  the  point  of  holding  that  it  is  not 
necessary  that  the  evidence  should  show  any  direct  communication  be- 
tween the  accessory  and  the  principal.^ 

§  2774.  Accessory  before  the  fact. — Accessories  in  crime  are  di- 
vided into  two  classes:  (1)  Accessory  before  the  fact;  (2)  acces- 
sory after  the  fact.  An  accessory  before  the  fact  is  one  "who,  being 
absent  at  the  time  of  the  crime  committed,  doth  yet  procure,  counsel, 
or  command  another  to  commit  a  crime.  Herein  absence  is  neces- 
sary to  make  him  an  accessory."®  Another  distinction  is  made  thus : 
"To  be  a  principal  in  either  degree,  there  must  be  an  actual  or  con- 
structive presence  at  the  commission  of  the  offense.  Advising  its 
perpetration  makes  the  advisor  an  accessory  before  the  fact;  receiving 
the  stolen  property,  knowing  it  to  be  stolen  makes  the  receiver  ac- 
cessory after  the  f act."'^  Mr.  Wharton  says :  "An  accessory  before  the 
fact  is  one  who,  though  absent  at  the  time  of  the  commission  of  the 
felony,  doth  yet  procure,  counsel,  command  or  abet  another  to  com- 
mit such  felony."*  As  defined  by  Mr.  Bishop:  "An  accessory  be- 
fore the  fact  is  a  person  whose  will  contributed  to  a  felony  committed 
by  another  as  principal,  while  himself  too  far  away  to  aid  in  the 
felonious  act."     Mr.  Bishop  concedes  that  the  distinction  between 

n    Wharton    Cr.    Law,    §116;    1  '  1  Wharton  Cr.  Law,  §  134;  1  Hale 

Wharton  Cr.  Law,  §  211;   3  Green-  P.  C.  615;   Able  v.  Commonwealth, 

leaf    Ev.,    §  40;    but    see.    State    v.  5  Bush  (Ky.)  698;  United  States  v. 

Ricker,  29  Me.  84.  Hartwell,     3     Cliff.     (U.     S.)     221; 

^Commonwealth     v.     Smith,     11  Komrs  v.   People,   31   Colo.   212,  73 

Allen   (Mass.)   243;   Rex  v.  Cooper,  Pac.  25;  Albritton  v.  State,  32  Fla. 

5  Car.  &  P.  535.  358,  13  So.  955;    State  v.  Beebe,  17 

^4  Blackstone  Comm.  35.  Minn.  241;    Pearce  v.  Territory,  11 

'Able  V.  Commonwealth,  5  Bush  Okla.  438,  68  Pac.  504;  State  v.  Max- 

(Ky.)   698;   Connaughty  v.  State,  1  ent,  10  La.  Ann.  743, 
Wis,  159, 


77  AFTER  THE  FACT.  [§  2775, 

the  principal  and  an  accessory  before  the  fact  is  purely  technical,  and 
has  no  existence  in  natural  reason  or  the  ordinary  doctrines  of  the 
law.®  By  statute  in  many  of  the  states  all  distinctions  between  prin- 
cipals and  accessories  have  been  abolished,  and  all  persons  partici- 
pating in  the  commission  of  a  felony,  whether  they  are  present,  ac- 
tively engaged  in  the  act,  or  though  absent,  aid  and  abet  its  commis- 
sion; and  they  may  be  indicted,  tried  and  punished  as  principals.^^ 

§  2775.  Accessory  after  the  fact. — There  is  a  clear  distinction 
between  an  accessory  before  the  fact  and  an  accessory  after  the  fact. 
So  the  distinction  between  an  accessory  after  the  fact  and  a  prin- 
cipal is  clear.  And  an  accessory  after  the  fact  is  not  to  be  charged 
simply  as  one  receiving  stolen  goods.  As  defined  in  some  statutes 
and  by  some  courts  an  accessory  after  the  fact  "is  a  person  who 
after  full  knowledge  that  a  crime  has  been  committed,  conceals 
it  from  the  magistrate  and  harbors,  assists,  or  protects  the  person 
charged  with  or  convicted  of  the  crime."  And  as  further  stated  by 
the  same  court:  "In  this  classification  of  the  offense,  both  at  com- 
mon law  and  under  our  statutes,  the  law  contemplates  some  assist- 
ance or  act  done  to  the  felon  himself,  and  is  distinct  from  receiving 
stolen  goods  from  the  felon,  except  such  taking  is  for  the  purpose  of 
facilitating  his  escape  from  justice,  or  attended  with  some  benefit." 
The  difference,  therefore,  between  an  accessory  after  the  fact  and  a 
person  receiving  stolen  goods  is  that  the  former  renders  some  aid, 
assistance  or  protection  to  the  principal  while  the  latter  does  not.^^ 

»1  Bishop  Cr.  Law  (New),  §  673;  36  La.  Ann.  572;  State  v.  Hamilton, 

Hately  v.  State,  15  Ga.  346;  Kinne-  13   Nev.   386;    Warden  v.   State,   24 

brew  V.  State,  80  Ga.  232,  5  S.  E.  56;  Ohio  St.  143;  Cook  v.  State,  14  Tex. 

Riggins  v.  State,  116  Ga.  592,  42  S.  App.  96;  Ogle  v.  State,  16  Tex.  App. 

E.  707;  Pearce  v.  Territory,  11  Okla.  361;  State  v.  Prater,  52  W.  Va.  132, 

438,  68  Pac.  504;    State  v.  Snell,  46  43  S.  E.  230;  Hicks  v.  United  States, 

Wis.    524,    1    N.    W.    225;    Spear   v.  150  U.  S.  442.  14  Sup.  Ct.  144. 

Hiles,   67  Wis.   361,  30  N.  W.   511;  ^"Griffith  v.  State,  90  Ala.  583.  8 

Meister  v.  People,  31  Mich.  99;  Un-  So.  670;  State  v.  Tally,  102  Ala.  25, 

ger  v.   State,  42  Miss.   642;    People  15    So.    722;    State   v.    Cassady,    12 

v.   Katz,   23   How.  Pr.    (N.  Y.)    93;  Kans.  550;   Spies  v.  People,  122  111. 

People  v.   Wixon,   5   Park.   Cr.   Cas.  1,  12  N.  E.  865. 

(N.   Y.)    119;    McCarney   v.   People,  "4  Blackstone  Comm.  37;   1  Hale 

83  N.  Y.  408;  Phillips  v.  Tucker,  14  P.    C.    618;    1    Chitty   264;    Loyd   v. 

N.   Y.    St.   120;    Usselton   v.   People,  State,  42  Ga.  221;   State  v.  Cassady, 

149  111.  612,  36  N.  E.  952;    State  v.  12    Kans.    550;     Able    v.    Common- 

Farr,  33  Iowa  553;  State  v.  Poynier,  wealth,  5  Bush  (Ky.)  698;  Tully  v. 


§§  2776,  2777.]  accessories.  78 

§  2776.  Accessory  during  the  fact. — Some  statutes  define  what  is 
called  an  accessory  during  the  fact.  This  is  defined  to  be  "a  person 
who  stands  by  without  interfering  or  giving  such  help  as  may  be 
in  his  power  to  prevent  a  criminal  offense  from  being  committed." 
Under  such  a  statute  the  indictment  must  state  and  the  proof  must 
show  that  the  accused  had  power  to  prevent  the  commission  of  the 
particular  crime;  they  should  show  what  it  was  in  his  power  to  do 
without  placing  himself  in  peril;  or  what  act  he  failed  to  do  which 
he  might  have  safely  done.  Under  such  circumstances  the  law  does 
not  require  a  person  to  hazard  his  personal  safety  to  prevent  the 
commission  of  a  crime.  He  is  not  required  to  expose  himself  to 
danger.^^ 

§  2777.  Proof  of  principal's  guilt. — It  is  a  primary  and  funda- 
mental rule  that  under  the  common  law  or  the  statutes  for  punish- 
ing accessories,  it  is  necessary  that  the  guilt  of  the  principal  felon 
should  be  shown  before  an  accused  could  be  convicted  as  an  acces- 
sory. For  the  same  reason  it  was  therefore  necessary  that  the  in- 
dictment against  an  accessory  should  be  sufficient  as  to  make  it  a 
good  indictment  against  the  principal.^ ^  The  rule  as  stated  by  some 
courts  is  that  the  conviction  of  the  principal  is  essential  to  the  guilt 
of  an  accessory  at  common  law.^*  Some  statutes  permit  the  in- 
dictment and  conviction  of  the  accessory  where  it  appears  that  the 
principals  could  not  be  captured  or  prosecuted  and  convicted.  In 
such  cases  before  an  accessory  can  be  convicted  the  statute  must  show 
that  a  crime  had  been  committed  and  that  the  principal  could  not 
be  arrested.     Before  an  accessory  can  be  convicted  under  such  stat- 

Commonwealth,     11     Bush      (Ky.)  ritory   v.   Dwenger,   2   N.   Mex.   73; 

154;  Harris  v.  State,  7  Lea  (Tenn.)  Levy  v.  People,  80  N.  Y.  327;   State 

124;    3  Greenleaf  Ev.,   §§   47-50.  v.  Duncan,  6  Ired.  L.   (N.  Car.)  98; 

'^Farrell  v.   People,   8   Colo.   App.  Self  v.  State,  6  Baxt.    (Tenn.)   244; 

524,  46  Pac.  841;  State  v.  Hamilton,  McCarty     v.     State,     44     Ind.     214; 

13  Nev.  386.  Simms  v.  State,  10  Tex.  App.  131; 

"  Tully     V.      Commonwealth,      11  Armstrong    v.    State,    33    Tex.    Cr. 

Bush    (Ky.)    154;    Stoops    v.    Com-  App.  417,  26  S.  W.  829;  but  see  con- 

mon wealth,    7   S.   &   R.    (Pa.)    491;  tra:    State  v.  Mosley,  31  Kans.  355, 

Buck  v.  Commonwealth,  107  Pa.  St.  2  Pac.  782;  State  v.  Bogue,  52  Kans. 

486;    Armstrong   v.    State,    33    Tex.  79,  34  Pac.  410;    State  v.  Patterson, 

Cr.  App.  417,  26  S.  W.  829;  Hatchett  52  Kans.  335,  34  Pac.  784. 
V.  Commonwealth,  75  Va.  925;    Og-         "  Bowen,    Ex   parte,    25    Fla.    214, 

den    v.     State,    12    Wis.    532,    592;  6   So.   65;    Bowen  v.   State,   25   Fla. 

Baxter  v.  People,  7  111.  578;  Ray  v.  645,  6  So.  459. 
State,  13  Neb.  55,  13  N.  W.  2;  Ter- 


79  principal's  guilt.  [§  2778. 

utes  it  must  be  shown  generally  that  the  principal,  whether  taken  or 
not  or  whether  known  or  unknown,  was  guilty.  ^^  But  some  statutes 
permit  the  arrest,  prosecution  and  conviction  of  the  accessory  with- 
out reference  to  the  question  of  the  conviction  of  the  principal;  j^et 
such  statutes  adhere  to  the  rule  of  requiring  the  guilt  of  the  prin- 
cipal to  be  proved.^*'  But  the  rule  is  that  "any  acts  and  conduct  of 
the  principal  tending  to  show  his  own  guilt  is  evidence  of  such  guilt 
as  against  the  accessory."^^  The  accessory  may  be  tried  before  the 
conviction  of  a  principal,  but  as  above  stated  the  proof  must  estab- 
lish the  guilt  of  the  principal,  and  any  evidence  competent  to  show 
the  guilt  of  the  principal  is  admissible  for  that  purpose  on  the  trial 
of  the  accessory.^^  And  it  has  been  held  that  the  proof  must  es- 
tablish the  guilt  of  the  principal  as  well  as  that  of  the  accessory  be- 
yond a  reasonable  doubt.  ^'*  The  rule  seems  to  be  well  established 
that  the  accessory  may  on  his  own  behalf  controvert  the  propriety  or 
the  correctness  of  the  principal's  conviction  by  the  testimony  of 
witnesses.^" 

§  2778.     Proof  of  principal's  guilt — Record  of  conviction. — The 

rule  as  stated  in  the  preceding  section  requires  that  the  guilt  of  the 
principal  be  established.  Any  legitimate  evidence  which  does  this  or 
which  tends  to  establish  his  guilt  is  competent  and  admissible.  And 
for  the  purpose  of  establishing  the  guilt  of  the  principal  it  is  now  the 
general  rule  that  a  record  of  his  conviction  and  sentence  is  admis- 
sible in  evidence  for  this  purpose.'^  However,  the  rule  is  that  such 
records  of  conviction  are  only  prima  facie  evidence  of  the  guilt  of 
the  principal.  And  the  record  of  the  conviction  of  the  principal  on 
a  plea  of  guilty  is  not  conclusive  for  any  purpose  connected  with  the 

"Edwards   v.    State.    80    Ga.    127,  Car.)   98;   McCarty  v.  State,  44  Ind. 

4  S.  E.  268.  214. 

"Vaughan  v.  State,  57  Ark.  1,  20         ^^  Anderson  v.   State,   63  Ga.   675; 

S.  W.  588.  Coxwell  v.  State,  66  Ga.  310;  Groves 

"Gill  V.  State,  59  Ark.  422,  27  S.  v.    State,   76   Ga.    808;    Stripland   v. 

W.  598;  State  v.  Rand,  33  N.  H.  216;  State,    114    Ga.    843,    40    S.    E.    993; 

Self  v.  State,  6  Baxt.    (Tenn.)    244;  Keithler    v.    State,    10    Sm.    &    M. 

Simms  v.  State,  10  Tex.  App.  131.  (Miss.)   192;   Levy  v.  People,  80  N. 

^'Buck  v.  Commonwealth,  107  Pa.  Y.    327;    State  v.   Mosley,   31   Kans. 

St.  486;   Vaughan  v.  State,  57  Ark.  355,   2   Pac.   782;    State  v.  Chittem. 

1,  20  S.  W.  588.  2    Dev.    L.    (N.    Car.)    49;    West   v. 

i^Poston    V.    State,    12    Tex.    App.  State,   27   Tex.   App.   472,    11    S.   W. 

408.  482;    United    States   v.    Hartwell,    3 

^'o  State  v.  Duncan,  6  Ired.  L.   (N.  Cliff.    (U.  S.)   221;   People  v.  Gray, 

25  Wend.  (N.  Y.)  465. 


§•  3779.]  ACCESSORIES.  80 

trial  of  the  accessory,  if  he  choose  to  controvert  it.^^  But  the  prose- 
cution is  not  limited  to  the  introduction  of  a  record  but  may  estab- 
lish the  guilt  of  the  principal  by  any  other  competent  evidence.^^ 
So,  a  record  of  the  conviction  of  a  principal  on  a  plea  of  guilty  can 
only  be  prima  facie  proof  of  his  guilt  as  against  the  accessory.-* 

§  2779.  Effect  of  acquittal. — In  the  jurisdictions  which  hold  that 
the  principal's  guilt  must  be  established  in  order  to  support  a  con- 
viction of  the  accessory,  it  is  also  the  rule  that  proof  of  the  princi- 
pal's acquittal  operates  as  a  complete  defense  on  behalf  of  the  ac- 
cessory and  he  must  be  discharged.-"  This  was  carried  to  the  extent 
of  holding  that  where  a  verdict  of  guilty  was  returned  against  the 
accessory  but  before  sentence  was  pronounced  the  principal  was  tried 
and  acquitted,  that  on  the  production  of  the  record  of  such  acquittal 
of  the  principal  the  accessory  should  be  discharged. -''  So  where  a 
principal  was  indicted  and  convicted  and  the  conviction  of  the  ac- 
cessory followed,  but  the  principal  thereafter  appealed  his  case  which 
was  reversed,  it  was  held  that  the  accessory  should  be  discharged.^' 
But  in  the  jurisdictions  where  the  distinction  between  principal  and 
accessory  has  been  abolished,  the  rule  as  to  the  conviction  or  ac- 
quittal of  the  principal  no  longer  applies.-^  If  the  record  shows  an 
acquittal  of  the  principal  then  the  accessory  must  be  discharged,  and 
where  the  accessory  was  first  tried  and  a  verdict  of  guilty  returned 
but  before  sentence  was  pronounced  the  principal  was  tried  and  ac- 

==  Anderson  v.  State.  63  Ga.   675;  So.  459;   McCarty  v.  State,  44  Ind. 

State    v.    Mosley,    31    Kans.    355,    2  214. 

Pac.  782;   Levy  v.  People,  80  N.  Y.  =^Ray  v.  State,  13  Neb.  55,  13  N. 

327;   People  v.  Buckland,  13  Wend.  W.   2. 

(N.  Y.)  592;  United  States  v.  Hart-  "'People   v.    Bearss,    10    Cal.    68; 

well,  3  Cliff.   (U.  S.)   221;   Studstill  People   v.    Newberry,    20   Cal.    439; 

V.  State,  7  Ga.  2;  Commonwealth  v.  State    v.    Mosley,    31    Kans,    355,    2 

Knapp,  10  Pick.   (Mass.)   477;   State  Pac.  782;    State  v.  Bogue,  52  Kans. 

V.  Gleim,  17  Mont.  17,  41  Pac.  998.  79,  34  Pac.  410;   State  v.  Patterson, 

"Levy  V.  People,  80  N.  Y.  327.  52   Kans.   335,   34   Pac.   784;    People 

2*  Anderson  v.  State,  63  Ga.   675;  v.  Kief,  126  N.  Y.  661,  27  N.  E.  556; 

Groves  V.  State,  76  Ga.  808;  Baxter  Noland  v.  State,  19  Ohio  131;  Evans 

V.  People,  7  111.  578;   Buck  v.  Com-  v.  State,  24  Ohio  St.  458;    State  v. 

mon wealth,  107  Pa.  St.  486.  Cassady,    12    Kans.    550;     State    v. 

=5  State     V.     Ludwick,     Phil.     (N.  Jones,  7  Nev.  408;    Spies  v.  People, 

Car.)    401;    State   v.   Jones,   101   N.  122    111.    1,    12    N.    E.    865;    Reg.    v. 

Car.  719,  8  S.  E.  147;  United  States  Hughes,  Bell  Cr.  Cas.  242;    Reg.  v. 

V.  Crane,  4  McLean  (U.  S.)  317.  Pulham,  9  Car.  &  P.  280. 

»Bowen  v.   State,   25   Fla.   645,   6 


81  CONFESSIONS    OF    FRINCIPAL.         [§§    2780,    2781. 

quitted,  it  was  held  that  on  the  production  of  the  record  showing  such 
acquittal  of  the  principal  the  accessory  should  bo  discharged. -° 

§  2780.  Proof  of  principal's  guilt — Confession. — It  has  already 
been  shown  in  preceding  sections  that  on  the  trial  of  an  accessory  the 
guilt  of  the  principal  must  be  proved,  and  that  tliis  might  be  done  by 
any  competent  evidence.  The  courts  are  not  agreed,  however,  on  the 
C]uestion  of  the  admissibility  of  the  admissions  or  confessions  made  by 
the  j)rincipal.  The  rule  established  by  the  decided  weight  of  author- 
ities, and  certainly  by  the  better  reasoning,  is  that  the  confession  of 
the  principal  is  admissible :  ( 1 )  When  the  confession  is  such  that  it 
would  be  competent  evidence  if  the  principal  himself  were  on  trial; 
(8)  that  sucli  confession  is  admissible  only  for  the  purpose  of  mak- 
ing the  prima  facie  proof  of  the  principal's  guilt,  and  is  not  otherwise 
evidence  against  tlio  accessory.^''  And  this  rule  has  been  carried  to 
the  extent  of  holding  that  a  confession  is  admissible  where  it  goes  not 
only  to  the  guilt  of  the  principal,  but  tends  to  prove  the  guilt  of  tlie 
accused.^  ^  But  it  seems  that  proof  of  such  confession  cannot  be  made, 
at  least  as  evidence  against  the  accused,  until  a  conspiracy  is  estab- 
lished.^^ 

§  2781.  Accessory  before  the  fact — Proof  of  guilt. — Many  stat- 
utes have  abolished  the  distinction  between  principals  and  acces- 
sories before  the  fact  and  punish  all  as  principals.  Yet  the  rule  is 
maintained  that  unless  the  proof  would  be  sufficient  to  convict  the 
accused  as  an  accessory,  according  to  the  distinction  at  common  law, 
he  could  not  be  found  guilty  under  such  gtatutcs.''^  But  where  a 
statute  provides  for  punishing  an  accessory  as  a  principal  the  acces- 
sory must  be  indicted  as  a  principal ;  otherwise  there  can  be  no  con- 

='Bowen  v.   State.   25   Fla.   645,   fi  W.  588;    Gill  v.  State,  59  Ark.  422, 

So.   459;    McCarty  v.  State,  44  Ind.  27  S.  W.  598;    State  v.  Rand,  33  N. 

214.  H.  216;  Ogden  v.  State,  12  Wis.  532, 

="  Smith    V.     State,    46    Ga.     298;  592;    Rex   v.    Turner,    1    Moody   Cr. 

Groves  v.  State,  76  Ga.  808;    Lynes  Gas.  374. 

V.  State,  36  Miss.  617;  Self  v.  State,  =' Territory  v.  Dwenger,  2  N.  Mex. 

6    Baxt.     (Tenn.)     244;     Morrow    v.  73. 

State,  14  Lea    (Tenn.)    475;    Simms  ^-Loggins    v.    State,    8    Tex.    App. 

V.  State,  10  Tex.  App.  131;   Bluman  434;    Arnold   v.    State,   9   Tex.  App. 

V.  State,  33  Tex.  Cr.  App.  43,  21  S.  435;    Crook   v.   State,   27   Tex.   App. 

W.  1027;  Hartwell  v.  United  States,  198,  11  S.  W.  444. 

3  Cliff.  (U.  S.)  221;  but  see,  contra:  =^  State  v.  Farr.  33  Iowa  553. 
Vaughan  v.  State,  57  Ark.  1,  20  S. 
Vol.  4  Elliott  Ev. — 6 


§  2783.]  ACCESSORIES.  82 

viction.^*  JSTo  absolute  rule  can  be  given  as  to  the  nature  or  suffi- 
ciency of  the  proof  to  convict  an  accessory.  It  is  never  necessary 
that  the  evidence  of  an  unlawful  combination  to  perpetrate  a  par- 
ticular offense  should  be  direct  and  positive.  Such  combination  or 
common  intent  may  be  proved  from  all  the  facts  and  circumstances 
connected  with  the  transaction.^^  And  as  stated  by  another  court 
where  the  accused  was  charged  as  an  accessory  in  a  homicide  case, 
"nor  is  it  necessary  that  the  acts  or  words  of  the  accessory  should 
directly  incite  or  expressly  command  the  principal  to  commit  the 
homicide;  it  is  enough  if  it  appears  that  the  acts  or  words  of  the  ac- 
cessory were  intended  to  secure  the  unlawful  killing  of  the  deceased, 
and  that  they  effected  that  result."^*^ 

§  2782.  Proof  of  advising  or  participating. — In  order  to  estab- 
lish the  guilt  of  a  person  charged  as  an  accessory  the  proof  must 
bring  him  clearly  within  the  meaning  of  the  term  according  to  the 
definitions  already  given.  In  other  words  it  must  be  shown  that  he 
either  counseled,  commanded  or  procured  another  to  commit  the 
crime,  he  himself  not  being  actively  or  constructively  present  at  the 
time  it  was  committed.  But  it  is  not  essential  that  the  proof  show 
that  any  specific  mode  of  committing  the  offense  should  be  coun- 
seled or  commanded  ;  nor  is  it  necessary  to  prove  that  the  act  was 
committed  in  the  particular  manner  counseled  or  instigated.  In  the 
commission  of  the  act  itself  the  principal  may  vary  the  mode  or  cir- 
cumstances of  its  perpetration  and  yet  the  accessory  be  guilty;  or 
the  criminal  liability  may  exist  though  the  proof  fails  to  establish 
the  particular  manner,  time  or  place  counseled,  commanded  or  in- 
stigated by  the  accused.^^  But  it  is  necessary  that  tlie  proof  sliow 
a  criminal  intent  on  the  part  of  the  accessory;  or,  as  otherwise 
stated,  the  proof  must  show  that  the  accessory  intended  the  crimi- 
nal effect.^^    So  it  is  held  that  the  instigation  or  encouragement  given 

'*  Baxter  v.  People,  3  Gilm.    (111.)  Griffith  v.  State,  90  Ala.  583,  8  So. 

368;    Coates  v.   People,   72   111.   303;  812;  Ferguson  v.  State,  134  Ala.  63, 

Usselton  v.  People,  149  111.   612,  36  32  So.  760. 
N.  E.  952.  =' Hicks  v.   United   States,   150   U. 

^^  State  V.  Lucas,  57  Iowa  501,  10  S.    140,    14    Sup.    Ct.    144;    Spies    v. 

N.  W.  868.  People,    122    111.    1,    12    N.    E.    865; 

^^  Sage   V.    State,    127    Ind.    15,    26  Commonwealth  v.  Campbell,  7  Allen 

N.  E.  667.  (Mass.)    541;    State   v.   Hickam,    95 

3^  Hughes    V.    State,    75    Ala.    31;  Mo.  322,  8  S.  W.  252. 


83  CRIME  IN  PURVIEW  OF  ACCESSORY'S  ADVICE.  [§    2783. 

by  the  accessory  may  be  by  words,  si<j^us  or  aets."^  But  the  proof 
must  show  that  the  advice  or  command  of  the  accessor}^  was  given 
and  tliat  it  was  actually  communicated  to  the  principal.*" 

§  2783.  Crime  by  principal  must  be  in  purview  of  accessory's  ad- 
vice.— The  rule  that  the  proof  need  not  show  any  specific  mode  of 
committing  the  offense  nor  that  the  act  was  committed  in  the  par- 
ticular manner  counseled  or  commanded  and  that  the  principal  may 
vary  the  mode  or  circumstances  of  its  perpetration  is  clearly  within 
the  line  of  the  authorities.  Yet  the  rule  is  that  the  crime  com- 
mitted by  the  principal  must  come  within  the  purview  of  the  ad- 
vice, counsel  or  instigation  of  tlie  accessory.  In  other  words  the  ac- 
cessory is  not  criminally  liable  where  the  principal  commits  a  col- 
lateral or  an  independent  crime.  But  the  accessory  is  guilty  if  in 
the  perpetration  of  the  particular  offense  counseled,  advised  and 
instigated  by  him  the  principal  commits  a  crime  which  is  incident 
to  or  connected  with  the  offense  attempted  to  be  perpetrated  or  is 
one  of  the  probable  consequences  of  the  offense  intended.  This  rule 
is  best  appreciated  and  understood  by  the  illustrative  cases.  Thus 
where  the  accused  procured  another  as  principal  to  commit  a  rob- 
bery, and  either  in  the  commission  of  the  robbery  or  immediately 
thereafter  such  principal  murdered  the  person  robbed  in  order  to 
conceal  the  crime,  it  was  held  that  the  accused  was  guilty  as  an  ac- 
cessory to  the  murder.*^  This  rule  was  illustrated  by  the  Supreme 
Court  of  Ohio  thus :  "If  several  are  associated  together  to  commit 
a  robbery,  and  one  of  them,  while  all  are  engaged  in  the  common  de- 
sign, intentionally  kills  the  person  they  are  attempting  to  rob,  in 
furtherance  of  the  common  purpose,  all  are  equally  guilty,  though 
the  others  had  not  previously  consented  to  the  killing,  where  such 
killing  was  done  in  the  execution  of  the  common  purpose,  and  was  a 
natural  and  probable  result  of  the  attempt  to  rob."'*^ 

'"Brennan  v.  People,  15   111.  511;  Mo.   135,   43    S.   W.    637;      Watts   v. 

Spies  V.  People,  122  111.  1,  12  N.  E.  State,    5    W.    Va.    532;      Saunders' 

865;    McKee  v.  State,  111   Ind.  378.  Case,  Plow.  473. 
12  N.  E.  510.  ^-  Stephens  v.    State,    42   Ohio    St. 

'"Spies   V.    People,    122    111.    1,    12  150;     State   v.    Nash.    7    Iowa    347; 

N.  E.  865.  State  v.  Shelledy,  8  Iowa  477;  State 

"State  V.  Davis,  87  N.  Car.  514;  v.  Lucas,  55  Iowa  321,  7  N.  W.  583; 

People    V.    Keefer,    65    Cal.    232.    3  State  v.  Lucas,  57  Iowa  501.  10  N. 

Pac.   818;    State   v.   Lucas,   55    Iowa  W.  868;  People  v.  Pool.  27  Cal.  572; 

321,  7  N.  W.  583;   State  v.  May,  142  People    v.    Vasquez,    49    Cal.    560; 


§  2784.]  ACCESSORIES.  84 

§  2784.  Accessory  after  the  fact — Proof  sufficient  to  constitute. 
In  order  to  convict  an  accused  as  being  an  accessory  after  the  fact 
the  proof  must  bring  him  within  the  definition  as  previously  given. 
To  be  sufficient  the  evidence  must  establisli :  ( 1 )  The  fact  of  a 
felony  having  been  committed;  (2)  knowledge  of  the  commission  of 
the  felony;  (3)  the  receiving,  relieving,  comforting  or  assisting  the 
felon.  It  is  clear  that  knowledge  of  the  commission  of  the  crime 
of  a  felony  must  be  brought  home  to  the  accused,  but  whether  or 
not  he  had  such  knowledge  is  a  question  of  fact  for  the  jury.  On 
the  question  of  receiving,  relieving  or  assisting  the  felon  the  rule 
has  been  stated  as  follows :  "That  any  assistance  given  to  one  known 
to  be  a  felon,  in  order  to  hinder  his  apprehension,  trial  or  punish- 
ment, is  sufficient  to  make  a  man  accessory  after  the  fact;  as  that 
he  concealed  himself  in  the  house,  or  shut  the  door  against  his  pur- 
suers, until  he  should  have  an  opportunity  to  escape,  or  supplied  him 
with  money,  a  horse  or  other  necessaries,  in  order  to  enable  him  to 
escape ;  or  that  the  principal  was  in  prison,  and  the  jailor  was  bribed 
to  let  him  escape ;  or  conveyed  instruments  to  him  and  enabled  him  to 
break  prison  and  escape.  This  and  such  like  assistance  to  one  known 
to  be  a  felon  would  constitute  a  man  accessory  after  the  fact."*^ 
On  the  trial  of  the  accessory  any  evidence  is  proper  which  goes  to 
j)rove  the  guilt  of  the  principal  or  the  accessory.**   An  inferior  court 

People  V.  Keefer,  65  Cal.  232,  3  Pac.  48  Cal.  189;  Reg.  v.  Chappie,  9  Car. 
818;  Stipp  v.  State,  11  Ind.  62;  &  P.  355;  Rex  v.  Greenacre,  8  Car. 
United  States  v.  Ross,  1  Gall.  (U.  &  P.  35;  3  Greenleaf  Ev.,  §  47;  1 
S.)  624;  Wynn  v.  State,  63  Miss.  Archibold  Cr.  Proc.  (PI.  &  Ev.)  17; 
260;  People  v.  Knapp,  26  Mich.  112;  Melton  v.  State,  43  Ark.  367;  Car- 
Watts  V.  State,  5  W.  Va.  532;  1  roll  v.  State,  45  Ark.  539;  People  v. 
Bishop  Cr.  Law,  §  636;  1  Wharton  Garnett,  129  Cal.  364,  61  Pac.  1114; 
Cr.  Law,  §  229.  Hearn  v.  State,  43  Fla.  151,  29  So. 
«Wren  v.  Commonwealth,  26  433;  White  v.  People,  81  111.  333; 
Gratt.  (Va.)  952;  Loyd  v.  State,  42  State  v.  Stanley,  48  Iowa  221;  State 
Ga.  221;  State  v.  Hudson,  50  Iowa  v.  Fry,  40  Kans.  311,  19  Pac.  742; 
157;  State  v.  Empey,  79  Iowa  460,  44  State  v.  Hann,  40  N.  J.  L.  228; 
N.  W.  707;  State  v.  Douglass,  3  Ohio  People  v.  Dunn,  7  N.  Y.  Cr.  173,  6 
Dec.  540;  State  v.  Davis,  14  R.  I.  N.  Y.  S.  805;  Noftsinger  v.  State,  7 
281;  Street  v.  State,  39  Tex.  Cr.  Tex.  App.  301;  Chitister  v.  State, 
App.  134,  45  S.  W.  577;  Tully  v.  33  Tex.  Cr.  App.  635,  28  S.  W.  683; 
Commonwealth,  13  Bush  (Ky.)  Gatlin  v.  State,  40  Tex.  Cr.  App. 
142;  Harrel  v.  State,  39  Miss.  702;  116,  49  S.  W.  87. 
Poston  v.  State,  12  Tex.  App.  408;  ^*  Territory  v.  Dwenger,  2  N.  Mex. 
Blakeley  v.  State,  24  Tex.  App.  616,  73;  Simms  v.  State,  10  Tex.  App. 
7  S.  W.  233;  People  v.  Shepardson,  131. 


85  ACCESSORY  AND  ACCOMPLICE  DISTIXGUISHED.  [§    2785. 

of  New  York  has  given  the  following  as  a  test:  "To  constitute  an 
accessory,  it  is  not  sufficient  to  assist  the  person  to  elude  punish- 
ment, because  failing  to  prosecute  or  preventing  the  attendance  of 
witnesses  would  produce  that  result.  But  to  constitute  the  offense, 
one  must  help  the  principal  to  elude,  or  evade,  capture."*^ 

§  2785.  Accessory  and  accomplice — Distinction. — The  terms  ac- 
cessory and  accomplice  are  sometimes  used  interchangeably  and  one 
term  is  often  used  as  synonymous  with  the  other.  But  the  majority 
of  the  cases  makes  a  very  clear  distinction  between  them.  It  is  true 
that  an  accessory  before  the  fact  may  always  be  said  in  a  sense  to  be  an 
accomplice ;  but  an  accomplice  is  not  always  an  accessory.  The  defini- 
tion given  by  one  court  is  as  follows :  "An  accomplice  is  defined  to 
be  a  person,  who  knowingly,  voluntarily  and  with  common  intent  with 
the  principal  offender,  unites  in  the  commission  of  a  crime."*^  Ac- 
cording to  some  decisions  and  some  law  writers  an  accomplice  is  a 
principal  in  the  first  degree  and  may  be  indicted  and  punished  in 
the  same  manner  as  the  principal.*'^  Other  courts  say  that  an  ac- 
complice is  "an  associate  in  crime ;  a  partner  or  partaker  in  guilt."** 
The  term  is  frequently  used  to  include  all  participants  in  a  crime 
whether  as  principals  or  accessories."*^  But  other  courts  and  writers 
define  accomplice  as  one  who  in  any  manner  participates  in  the 
criminality  of  an.  act,  whether  as  a  principal  in  the  first  or  second 
degree,  or  as  an  accessory  before  or  after  the  fact.^*'    According  to 

"■'  People  V.  Dunn,  7  N.  Y.  Cr.  173,  peth  v.  State,  50  Ark.  544,  9  S.  W. 

6  N.  Y.  S.  805.  1;  People  v.  Kraker,  72  Cal.  459,  14 

'"Clapp  v.  State,  94  Tenn.  186,  30  Pac.  196;  Cross  v.  People,  47  111.152; 

S.  W.  214;  State  v.  Roberts,  15  Ore.  Johnson  v.  State,  2  Ind.  652;   State 

187,  13  Pac.  896;   State  v.  Light,  17  v.  Henderson,  84  Iowa  61.  50  N.  W. 

Ore.  358,  21  Pac.  132;  State  v.  Carr,  758;    State  v.  Quinlan,  40  Minn.  55, 

28  Ore.   389,   42   Pac.   215;    State  v.  41   N.    W.    299;    Linsday   v.    People, 

Kuhlman,    152    Mo.    102,    53    S.    W.  63   N.   Y.   143,   153;    State   v.   Odell, 

416;  People  v.  Bolanger,  71  Cal.  17,  8  Ore.  30,  33;  Harris  v.  State,  7  Lea 

11    Pac.    799;    1    Wharton    Cr.    Ev.,  (Tenn.)    124;    Barrara   v.   State,   42 

§  440.  Tex.    260,    263;    House   v.    State,    16 

"State  v.  Umble,  115  Mo.  452;   22  Tex.   App.    25;    Zollicoffer   v.    State, 

S.   W.   378;    State  v.   Kuhlman,   152  16  Tex.  App.  312;  Harrison  v.  State, 

Mo.  102,  53  S.  W.  416.  17  Tex.  App.  442. 

"Davidson  v.  State,  33  Ala.  350;         =" Russell     Cr.     Pr.     26;     Polk    v. 

State  V.  Light,  17  Ore.  358,  21  Pac.  State,  36  Ark.  117;  Cross  v.  People, 

132.  47  111.  152;  Miller  v.  Commonwealth, 

<»  Davidson  v.  State,  33  Ala.  350;  78  Ky.  15. 
Polk  V.   State,   36   Ark.   117;    Huds- 


§  2' 


i86.] 


ACCESSORIES. 


86 


the  rule  established  in  Texas  an  accomplice  is  virtually  an  accessory 
before  the  fact."'^  An  accomplice  is  one  who  is  associated  with  others 
in  the  commission  of  a  crime,  all  being  principals,  although  the  term 
is  sometimes  used  to  include  all  the  participants  in  a  crime,  whether 
as  principals  or  accessories.^-  It  has  been  expressly  held  that  an  ac- 
cessory after  the  fact  was  not  an  accomplice  within  the  meaning  of 
the  law.^* 

§  2786.  Evidence  of  accomplice — Corroboration. — The  statutes  in 
almost  all  the  states  now  require  that  a  person  accused  of  a  crime 
cannot  be  convicted  on  the  evidence  of  the  accomplice  alone.  The 
rule  as  generally  stated  is  that  to  authorize  the  conviction  of  the  ac- 
cused on  the  testimony  of  an  accomplice,  such  testimony  must  be 
corroborated  by  other  evidence  tending  to  connect  the  accused  with 
the  commission  of  the  crime.^*   But  it  is  held  that  the  corroborative 


"Cook  V.  State.  14  Tex.  App.  96; 
Ogle  V.  State,  16  Tex.  App.  361; 
Smith  V.  State,  21  Tex.  App.  107,  17 
S.  W.  552;  West  v.  State,  28  Tex. 
App.  1,  11  S.  W.  635;  Rix  v.  State. 
33  Tex.  Cr.  App.  353;  26  S.  W.  505; 
Dawson  v.  State,  38  Tex.  Cr.  App. 
50,  41  S.  W.  599;  Bean  v.  State,  17 
Tex.  Cr.  App.  60;  Mitchell  v.  State, 
44  Tex.  Cr.  App.  228,  70  S.  W.  208. 

=- Harris  v.  State,  7  Lea  (Tenn.) 
124. 

=*  State  V.  Umble,  115  Mo.  452,  22 
S.  W.  378;  State  v.  Kuhlman,  152 
Mo.  102,  53  S.  W.  416;  People  v. 
Chadwick,  7  Utah  134,  25  Pac.  737; 
Lowery  v.  State,  72  Ga.  649;  Allen 
V.   State,  74  Ga.  769. 

"Lumpkin  v.  State,  68  Ala.  56; 
Burney  v.  State,  87  Ala.  80,  6  So. 
391;  Malachi  v.  State,  89  Ala.  134, 
S  So.  104;  Territory  v.  Neligh, 
(Ariz.)  10  Pac.  367;  Fort  v.  State, 
52  Ark.  180,  11  S.  W.  959;  People  v. 
Ames,  39  Cal.  403;  People  v.  Mel- 
vane,  39  Cal.  614;  People  v.  Clough, 
73  Cal.  348,  15  Pac.  5;  People  v. 
Smith,  98  Cal.  218,  33  Pac.  58;  Peo- 
ple V.  Larson,  (Cal.)  34  Pac.  514; 
People  V.  Strybe,   (Cal.)    36  Pac.  3; 


Childers  v.  State,  52  Ga.  105;  Mid- 
dleton  v.  State,  52  Ga.  527;  Chap- 
man V.  State,  112  Ga.  56,  37  S.  E. 
102;  Johnson  v.  State,  65  Ind.  269; 
Archer  v.  State,  106  Ind.  426,  7  N. 
E.  225;  State  v.  Schlagel,  19  Iowa 
169;  State  v.  Dietz,  67  Iowa  220,  25 
N.  W.  141;  State  v.  Van  Winkle,  80 
Iowa  15.  45  N.  W.  388;  Bowling  v. 
Commonwealth,  79  Ky.  604;  Craft 
V.  Commonwealth,  80  Ky.  349; 
Smith  V.  Commonwealth,  13  Ky.  L. 
R.  369,  17  S.  W.  182;  State  v.  Brin, 
30  Minn.  522,  16  N.  W.  406;  State  v. 
Clements,  82  Minn.  434,  85  N.  W. 
229;  People  v.  O'Neil,  109  N.  Y.  251, 

16  N.  E.  68;  People  v.  Ogle,  104  N. 
Y.  511,  11  N.  E.  53;  People  v.  Wil- 
liams, 29  Hun  (N.  Y.)  520,  522; 
People  V.  Plath,  100  N.  Y.  590,  3  N. 
E.  790;  People  v.  Butler,  62  App. 
Div.  (N.  Y.)  508.  71  N.  Y.  S.  129; 
People  V.  Bosworth,  64  Hun  (N.  Y.) 
72,  19  N.  Y.  S.  114;  State  v.  Hicks, 
6  S.  Dak.  325,  60  N.  W.  66;  State  v. 
Kent,  (S.  Dak.)  62  N.  W.  631;  State 
v.  Jarvis,  18  Ore.  360,  23  Pac.  251; 
Cox  V.  Commonwealth,  125  Pa.  St.  94, 

17  Atl.  227;  Lopez  v.  State,  34  Tex. 
133;    Bybee   v.    State,    36   Tex.   366; 


87  CORROBORATION    OF   ACCOMPLICE,  [§    2786. 

proof  need  not  of  itself  be  sufficiently  strong  as  to  warrant  a  con- 
viction.^^ It  has  also  been  held  tliat  the  corroborating  testimony  need 
not  be  true  beyond  a  reasonable  doubt. ^"^  It  has  been  held  to  be  suffi- 
cient if  the  accomplice  is  corroborated  as  to  such  facts  as  go  to  the 
identity  of  the  accused  in  connection  with  the  crime ;  in  other  words, 
the  rule  does  not  require  more  than  that  the  accomplice  be  corroborated 
as  to  the  facts  which  tend  to  connect  him  with  the  crime."  The  rule 
requiring  the  corroborating  evidence  to  connect  the  accused  with  the 
commission  of  the  crime  is  not  sufficiently  complied  with  where  the 
accomplice  is  corroborated  as  to  time,  place  and  circumstances  of  the 
transaction,  but  when  the  evidence  in  no  way  connects  the  ac- 
cused therewith.'^''  So  it  has  been  held  to  be  sufficient  if  the  accom- 
plice is  corroborated  by  other  evidence  as  to  any  material  point.^^ 
And  it  has  been  regarded  as  sufficient  where  the  evidence  of  the  ac- 
complice is  corroborated  by  proof  of  a  confession  by  the  accused.*^" 
However,  this  requirement  is  not  carried  to  the  extent  of  holding 
that  the  evidence  must  absolutely  connect  the  defendant  with  the 
crime;  but  it  has  been  held  to  be  sufficient  if  it  fairly  tends  to  con- 
nect him  with  the  perpetration  of  the  offense,  or  that  he  was  impli- 
cated in  it.*^^   And  it  is  held  to  be  the  rule  that  the  testimony  of  one 

Barrara    v.     State,     42     Tex.     260;  24  S.  W.  885;  People  v.  Courtney,  2S 

Wright  V.  State,  43  Tex.  170;   Lock-  Hun  (N.  Y.)  589. 

hart  V.  State,  29  Tex.  App.  35,  13  S.  =' Childers   v.    State,    52    Ga.    106; 

W.   1012;    Sanders  v.   State,    (Tex.)  State  v.  Hicks,  6  S.  Dak.  325,  60  N. 

29  S.  W.  777;    McNeally  v.  State,  5  W.  66. 

Wyo.  59,  36  Pac.  824;  United  States  =^"  People  v.  Ardell,  135  Cal.  19,  66 

V.  Kershaw,  5  Utah  618,  19  Pac.  194;  Pac.  970;    State  v.  Jones,  115  Iowa 

State  v.  Koplan,  167  Mo.  298,  66  S.  113,  88  N.  W.  196;  State  v.  Schlagel, 

W.    967;     State    v.    Stevenson,    26  19  Iowa  169;   People  v.  Hooghkerk, 

Mont.   332,   67   Pac.  1001;    an  inter-  96  N.  Y.  149;    People  v.   Bosworth, 

esting  but  not  important  history  of  64  Hun  (N.  Y.)  72,  19  N.  Y.  S.  114. 

the  progress  and  development  of  the  ™  Patterson  v.  Commonwealth,  S6 

law  of  the  corroboration  of  an  ac-  Ky.    313,    5    S.    W.    387;    Snoddy   v. 

complice  is  found  in  Wigmore  Ev.,  State,  75  Ala.  23;  Schaefer  v.  State, 

§  2056.  93  Ga.  177.  18  S.  E.  552. 

^s  Smith    V.    State,    59    Ala.    104;  "^People  v.  Everhardt,  104  N.  Y. 

Lumpkin  v.  State,  68  Ala.  56;   Peo-  591,  11  N.  E.  62;    People  v.  Elliott, 

pie   v.   Bosworth,    64    Hun    (N.    Y.)  106  N.  Y.  292,  12  N.  E.  602;   People 

72,  19  N.  Y.  S.  114.  V.  Elliott,  5  N.  Y.  Cr.  204;  People  v. 

'^''Vaughan  v.   State,   58  Ark.   353,  Bosworth,    64    Hun    (N.    Y.)    72,    19 

24  S.  W.  885.  N.    Y.    S.    114;     Commonwealth    v. 

"Vaughan  v.   State,   58  Ark.   353,  Holmes,  127  Mass.  424;  State  v.  Mc- 

Lain,  159  Mo.  340,  60  S.  W.  736. 


§  2787.]  ■  ACCESSORIES.  88 

accomplice  cannot  support  that  of  another.''-  The  rule  that  the 
evidence  of  one  accomplice  cannot  corroliorate  that  of  another  does 
not  apply  where  such  corroborative  evidence  is  by  an  accomplice  in 
a  separate  and  distinct  crime  or  in  a  different  crime  of  the  same 
kind.*'^  So  it  has  been  held  to  be  corroborative  evidence  for  the  con- 
sideration of  the  jury  where  the  accused  failed  to  contradict  the  ac- 
complice, where  such  contradictory  evidence  was  within  the  power 
of  the  accused.''* 

§  2787.  Evidence  of  accessory — Corroboration. — The  question  has 
arisen  as  to  whether  or  not  an  accessory  after  the  fact  is  an  accom- 
plice with  the  principal.  And  as  a  resultant  of  this  the  further  ques- 
tion has  arisen  as  to  whether  or  not  the  rule  requiring  proof  corroborat- 
ing the  evidence  of  an  accomplice  applies  to  an  accessory  after  the  fact. 
It  is  held  in  some  jurisdictions  under  their  statutes  that  an  accessory 
after  the  fact  cannot  be  indicted  and  tried  as  a  principal  and  there- 
fore the  accessory  after  the  fact  is  not  an  accomplice.''^  It  is  quite 
generally  held  that  an  accessory  after  the  fact  is  not  an  accomplice 
under  certain  statutes  and  within  the  meaning  of  the  rule  that  re- 
quires the  corroboration  of  the  testimony  of  an  accomplice.""  So  the 
rule  requiring  corroboration  does  not  apply  to  a  feigned  accomplice."' 

«=  Johnson     v.     State,     4     Greene  Mass.   343;    State  v.   Kuhlman,   152 

(Iowa)   65;   State  v.  Williamson,  42  Mo.  100.  53  S.  W.  416. 

Conn.     261;     Porter     v.     Common-  «°  Lowery  v.  State,  72  Ga.  649;  Al- 

wealth,  22  Ky.  L.  R.  1657,  61  S.  W.  len  v.  State,  74  Ga.  769;    People  v. 

16;    Powers    v.    Commonwealth,    22  Barric,   49   Cal.   342;    State  v.   Hay- 

Ky.  L.  R.  1807,  61  S.  W.  735.  den,  45  Iowa  11;  State  v.  Baden,  37 

«^  People  V.  Sternberg,  111  Cal.  3,  Minn.    212,   34   N.   W.   24;    State   v. 

43  Pac.  198.  Quinlan,  40  Minn.  55,  41  N.  W.  299; 

«*  People  V.  Dyle,  21  N.  Y.  578;  State  v.  Umble,  115  Mo.  452,  22  S. 
Gordon  v.  People,  33  N.  Y.  501;  W.  378;  State  v.  Kuhlman,  152  Mo. 
Ormsby  v.  People,  53  N.  Y.  472;  100,  53  S.  W.  416;  Harris  v.  State, 
People  V.  Ryland,  97  N.  Y.  126;  7  Lea  (Tenn.)  124;  People  v.  Chad- 
Whitney  V.  Ticonderoga,  127  N.  Y.  wick,  7  Utah  134,  25  Pac.  737. 
40,  27  N.  E.  403.  "^People  v.   Farrell,   30   Cal.   31G; 

"'Lowery  V.  State,  72  Ga.  549;  Al-  People  v.  Bolanger,  71   Cal.   17,   11 

len  V.   State,   74  Ga.  769;    Common-  Pac.    799;     Commonwealth    v.    Wil- 

wealth   V.    Wood,   11    Gray    (Mass.)  lard,    22    Pick.    (Mass.)    476;    Com- 

85;   Commonwealth  v.  Boynton,  116  monwealth     v.     Downing,     4     Gray 

(Mass.)   29;   1  Greenleaf  Ev.,  §  382. 


CHAPTER  CXXXI. 


ADULTERY. 


Sec.  Sec. 

2788.  Generally.  2797. 

2789.  Scope  of  chapter.  2798. 

2790.  Nature  of  proof.  2799. 

2791.  Proof  by  circumstances.  2800. 

2792.  Inferred    from    circumstances.  2801. 

2793.  Inferred    from    circumstances 

— No  proof  of  specific  act.  2802. 

2794.  Inference  from  particular  cir- 

cumstances. 2803. 

2795.  Cohabitation  or  living  in  adul- 

tery. 2804. 

2796.  Proof  not  limited  as  to  time 

or  place.  2805. 


Rule  as  to  single  act. 

Marriage — Proof  of  necessary. 

Marriage — Method  of  proving. 

Marriage — Proof  by  records. 

Marriage — Proof  by  persons 
present. 

Proof  of  marriage — Admis- 
sions, etc. 

Proof  of  marriage — Prima 
facie  case. 

Invalid  marriage  as  a  defense 
— Burden  of  proof. 

Invalid  divorce — No  defense. 


§  2788.  Generally. — The  chapter  on  this  subject  can  only  be  gen- 
eral. An  exhaustive  treatment  of  the  proof  required  to  establish  the 
crime  of  adultery  or  fornication  is  scarcely  practicable.  The  crime 
is  not  only  governed  but  is  also  usually  defined  by  the  local  statutes 
of  the  several  states,  and  these  are  by  no  means  uniform.  The  simple 
act  of  adultery  or  fornication  was  not  punishable  as  a  crime  by  the 
common  law.  But  this  rule  of  the  common  law  has  been  changed 
in  maJiy  of  the  states  of  the  United  States.  Under  some  of  the  local 
statutes  any  act  of  illicit  sexual  intercourse,  whether  adultery  or 
fornication,  is  punishable  as  a  misdemeanor  or  a  crime.  By  the  stat- 
utes of  other  states  the  adultery  or  fornication  must  be  in  connection 
with  a  living  together  or  a  coliabitation  by  the  parties.  On  account 
of  the  difference  in  the  statutes  of  the  various  states  there  is  found  a 
great  contrariety  as  well  as  a])parent  conflict  in  the  adjudicated  cases 
of  the  several  states.  Hence  in  order  to  reconcile  tlie  decisions  it  is 
necessary  to  examine  the  special  statutes  under  which  they  are  made. 

§  2789.  Scope  of  chapter. — The  fact  or  act  of  illicit  intercourse 
is  required  to  be  proved  in  a  variety  of  cases,  such  as  divorce,  se- 
duction, criminal  seduction,  abduction,  adultery  and  perhaps  some 

89 


§    2790.1  ADULTERY.  90 

others.  The  scope  and  purpose  of  this  chapter  is  to  give  the  rules 
of  proof  in  cases  onl}^  except  incidentally,  where  adultery  and  forni- 
cation are  made  crimes  or  where  living  together  or  cohabitation  in  a 
state  of  adultery  or  fornication  is  made  a  criminal  offense.  The 
rules  of  proof  in  these  various  cases  are  essentially  different.  Gen- 
erally in  most  of  the  cases  enumerated  the  fact  may  be  established  by 
a  mere  preponderance  of  the  evidence;  and  in  some  even  prima  facie 
proof  is  held  sufficient.  But  under  the  criminal  codes  the  general 
rule  of  proof  of  crimes  prevails  and  the  fact  must  be  established 
beyond  a  reasonable  doubt  whether  the  proof  be  by  direct  evidence, 
admissions  or  circumstances.^ 

§  2790.  Nature  of  proof. — It  is  commonly  accorded  that  the  act 
of  adultery  or  fornication  is  one  of  the  most  difficult  of  proof  in  the 
calendar  of  crimes.  But  few  persons  are  so  depraved  and  so  hard- 
ened to  all  sense  of  shame  that  they  commit  the  offense  except  in 
the  most  secret  and  clandestine  manner.  Hence  the  difficulty  of 
making  the  required  proof  is  recognized  and  compensated  by  the  law. 
This  compensation  consists  in  the  fact  that  the  law  does  not  require 
actual  proof  of  the  overt  act;  it  may  be  proved  by  circumstances. 
This  subject  has  been  fully  and  aptly  treated  in  an  English  case 
as  follows:  "It  is  a  fundamental  rule,  that  it  is  not  necessary  to 
prove  the  direct  fact  of  adultery,  because,  if  it  were  otherwise,  there 
is  not  one  case  in  a  hundred  in  which  that  proof  would  be  attain- 
able ;  it  is  very  rarely  indeed  that  the  parties  are  surprised  in  the 
direct  fact  of  adultery.  In  every  case  almost  the  fact  is  inferred 
from  circumstances  that  lead  to  it  by  fair  inference  as  a  necessary 
conclusion;  and  unless  this  were  the  case,  and  unless  this  were  so 
held,  no  protection  whatever  could  be  given  to  marital  rights.  Wliat 
the  circumstances  are  whicli  lead  to  such  a  conclusion  cannot  be  laid 
down  universally,  though  many  of  them,  of  a  more  obvious  nature 
and  of  more  frequent  occurrence,  are  to  be  found  in  the  ancient 
books ;  at  the  same  time  it  is  impossible  to  indicate  them  universally ; 
because  they  may  be  infinitely  diversified  by  the  situation  and  char- 
acter of  the  parties,  by  the  state  of  general  manners,  and  by  many 
other  incidental  circumstances  apparently  slight  and  delicate  in  them- 
selves, but  which  may  have  most  important  bearings  in  decisions 
upon  the  particular  case.    The  only  general  rule  that  can  be  laid 

^Gore  y.  State,  58  Ala.  391;  State  787;  Crane  v.  People,  168  111.  395, 
V.  Schweitzer,  57  Conn.  532,  18  Atl.     48  N.  E.  54. 


91  PROOF  BY  CIRCUMSTAXCES.  [§    2T91. 

down  upon  the  subject  is,  that  the  circumstances  must  be  such  as 
would  lead  the  guarded  discretion  of  a  reasonable  and  just  man  to 
the  conclusion;  for  it  is  not  to  lead  a  rash  and  intemperate  judg- 
ment, moving  upon  appearances  that  are  equally  capable  of  two  in- 
terpretations,— neither  is  it  to  be  a  matter  of  artificial  reasoning, 
judging  upon  such  things  differently  from  what  would  strike  the 
careful  and  cautious  consideration  of  a  discreet  man.  The  facts  are 
not  of  a  technical  nature;  they  are  facts  determinable  upon  common 
grounds  of  reason;  and  courts  of  justice  would  wander  very  much 
from  their  proper  office  of  giving  protection  to  the  rights  of  man- 
kind, if  they  let  themselves  loose  to  subtleties,  and  remote  and  arti- 
ficial reasoning  upon  such  subjects.  Upon  such  subjects  the  rational 
and  the  legal  interpretation  must  be  the  same."- 

§  2791.  Proof  by  circumstances. — Xo  general  rule  can  be  stated 
either  as  to  the  sufficiency  of  the  proof  or  as  to  the  nature  of  the 
circumstances  required  to  establish  the  fact.  Each  particular  case 
must  be  governed  by  its  own  peculiar  circumstances.  As  to  the  suffi- 
ciency of  such  circumstances  Mr.  Greenleaf  states  the  rule  as  follows : 
"It  will  be  sufficient,  if  the  circumstances  are  such  as  to  lead  the 
court,  traveling  with  every  necessary  caution  to  this  conclusion, 
which  it  has  often  drawn  between  persons  living  in  the  same  house, 
though  not  seen  in  the  same  bed  or  in  any  equivocal  situation.  It 
will  neither  be  misled  by  equivocal  appearances  on  the  one  hand, 
nor,  on  the  other,  will  it  suffer  the  object  of  the  law  to  be  eluded  by 
any  combination  of  parties  to  keep  without  the  reach  of  direct  and 
positive  proof.  And  in  examining  the  proofs,  they  will  not  be  taken 
isolated  and  detached;  but  the  whole  will  be  taken  together.  Yet, 
in  order  to  infer  adultery  from  general  conduct,  it  seems  necessary 
that  a  suspicio  violonta  should  be  created.  But  the  adulterous  dis- 
position of  the  parties  being  once  established,  the  crime  may  be  in- 
ferred from  their  afterward  being  discovered  together  in  a  bed- 
chamber, under  circumstances  authorizing  such  inference."^ 

*Loveden    v.    Loveden,    2    Hagg.  Car.)    23;    State   v.    Eliason,    91    N. 

Con.  1;    Matchin  v.  Matchin,  6  Pa.  Car.  564;  Commonwealth  v.  Clifford, 

St.  332.  145  Mass.  97,  13  N.  E.  345;  State  v. 

■^2  Greenleaf  Ev.,  §  41;   Powell  v.  Bridgman,    49   Vt.    202;    Inskeep   v. 

Powell,  80  Ala.  595.  1  So.  549;  Com-  Inskeep,     5     Iowa     204;      State     v. 

monwealth  v.  Bowers,  121  Mass.  45;  Snover,  64  N.  J.  L.  65,  44  Atl.  850; 

Commonwealth  v.   Gray,   129   Mass.  State  v.  Way,  5  Neb.  283;   Matchin 

474;    State  v.  Poteet,  8  Ired.  L.   (N.  v.  Matchin,  6  Pa.  St.  332;  Names  v. 


1 


§  2792.] 


ADULTERY. 


92 


§  2792.  Inferred  from  circumstances. — As  intimated  or  stated  in 
a  former  section  the  fact  of  adultery  may  be  established  by  circum- 
stances. So  the  law  now  very  generally  recognizes  that  the  fact  of 
adultery  may  be  inferred  from  circumstances.  The  requirement  is 
that  the  circumstances  shall  be  sufficient  to  raise  such  a  presump- 
tion of  guilt  as  would  leave  no  reasonable  doubt  in  the  minds  of  the 
jury  as  to  the  guilt  of  the  accused.  This  rule  was  very  aptly  stated 
by  the  Supreme  Court  of  Indiana  thus :  "From  the  nature  of  the 
case,  it  will  rarely  happen  that  direct  and  positive  evidence  of  acts 
of  illicit  intercourse  can  be  obtained.  Accordingly,  the  unlawful  and 
lascivious  commerce  may  be  inferred  from  circumstances  proven, 
which  raise  such  a  presumption  of  guilt,  as  leaves  no  reasonable 
doubt,  in  that  regard,  in  the  minds  of  the  jury."*    The  rule  as  ap- 


Names,  67  Iowa  383,  25  N.  W.  671; 
Culver  V.  Culver,  38  N.  J.  Eq.  163; 
Day  V.  Day,  4  N.  J.  Eq.  444;  Berck- 
mans  v.  Berckmans,  16  N.  "J.  Eq. 
122;  Hurtzig  v.  Hurtzlg,  44  N.  J. 
Eq.  329,  15  Atl.  537;  Richardson  v. 
State,  34  Tex.  142;  Price  v.  State, 
18  Tex.  App.  474;  State  v.  Bridg- 
man,  49  Vt.  202;  State  v.  Potter,  52 
Vt.  33.     See  also,  Vol.  I,  §  176. 

^Richardson  v.  Richardson,  4 
Port.  (Ala.)  467;  State  v.  Crowley, 
13  Ala.  172;  Gore  v.  State,  58  Ala. 
391;  Love  v.  State,  124  Ala.  82,  27 
So.  217;  State  v.  Schweitzer,  57 
Conn.  532,  18  Atl.  787;  Weaver  v. 
State,  74  Ga.  376;  Eldridge  v.  State, 
97  Ga.  192;  Starke  v.  State,  97 
Ga.  193;  Searls  v.  People,  13  111. 
597;  Daily  v.  Daily,  64  III.  329; 
Bast  V.  Bast,  82  111.  584;  Cooke  v. 
Cooke,  152  III.  286,  38  N.  E.  1027; 
Stiles  V.  Stiles,  167  III.  576,  47  N. 
E.  867;  Crane  v.  People,  168  111. 
395,  48  N.  E.  54;  Jackson  v.  State, 
116  Ind.  464,  19  N.  E.  330;  State  v. 
Kirkpatrick,  63  Iowa  554,  19  N.  W. 
660;  State  v.  Briggs,  68  Iowa  416, 
27  N.  W.  358;  State  v.  Henderson, 
84  Iowa  161,  50  N.  W.  758;  State  v. 
Ean,  90  Iowa  534,  58  N.  W.  898; 
Aitchison  v.  Aitchison,  99  Iowa  96, 


68  N.  W.  573;  Carlisle  v.  Carlisle, 
99  Iowa  247,  68  N.  W.  681;  State  v. 
Wiltsey,  103  Iowa  54,  72  N.  W.  415; 
State  V.  Witham,  72  Me.  531; 
Thayer  v.  Thayer,  101  Mass.  Ill; 
Commonwealth  v.  Bowers,  121 
Mass.  45,  47;  Commonwealth  v. 
Gray,  129  Mass.  474;  Common- 
wealth V.  Clifford,  145  Mass.  97.  13 
N.  E.  345;  People  v.  Davis,  52  Mich. 
569,  18  N.  W.  362;  People  v.  Gird- 
ler,  65  Mich.  68,  31  N.  W.  624;  Peo- 
ple V.  Montague,  71  Mich.  447,  39  N. 
W.  585;  People  v.  Fowler,  104  Mich. 
449,  62  N.  W.  572;  Carotti  v.  State, 
42  Miss.  334,  97  Am.  Dec.  465;  State 
V.  Clawson,  30  Mo.  App.  139;  State 
V.  Coffee,  39  Mo.  App.  56;  State  v. 
Way,  5  Neb.  283;  State  v.  Bailey,  36 
Neb.  808,  55  N.  W.  241;  State  v. 
Winkley,  14  N.  H.  480;  State  v. 
Marvin,  35  N.  H.  22;  State  v. 
Snover,  64  N.  J.  L.  65,  44  Atl.  850; 
Hurtzig  V.  Hurtzig,  44  N.  J.  Eq. 
329,  15  Atl.  537;  Van  Epps  v.  Van 
Epps,  6  Barb.  (N.  Y.)  320;  State  v. 
Poteet,  8  Ired.  L.  (N.  Car.)  23; 
State  V.  Waller,  80  N.  Car.  401; 
State  V.  Kemp,  87  N.  Car.  538;  State 
V.  Pippin,  88  N.  Car.  646;  State  v. 
Eliason,  91  N.  Car.  564;  State  v. 
Guest,  100  N.  Car.  410,  6  S.  E.  253; 


93  INFERRED  FRO:\I   CIRCUMSTAXCES.       [§§    2793,    2794. 

plied  by  one  court  in  a  civil  action  was  thus  stated:  "In  order  to 
prove  adultery  by  circumstantial  evidence  two  points  are  to  be  ascer- 
tained and  established;  the  opportunity  for  the  crime,  and  the  will 
to  commit  it.  Where  both  are  established,  the  court  will  infer  the 
guilt."^ 

§  2793.  Inferred  from  circumstances — No  proof  of  specific  act. 
By  the  rule  stated  in  a  former  section  proof  of  a  single  act,  or  even 
several  acts  of  adultery,  without  living  together,  would  not  be  suffi- 
cient to  establish  the  criminal  offense;  nor  would  the  mere  proof  of 
living  together  without  the  commission  of  adultery  be  sufficient ;  but 
the  proof  of  living  together  with  proof  of  other  circumstances,  the 
condition  and  situation  of  the  parties  might  be  sufficient  to  justify 
or  support  a  verdict  of  guilty  in  the  absence  of  any  proof  of  the 
specific  act.  Of  this  the  Illinois  court  said :  "It  may,  of  course,  pos- 
sibly be  true  that  no  act  of  adultery  ever  occurred  between  the  plain- 
tiffs in  error,  as  they  testified;  but  when  men  and  women  assume 
those  relations,  commit  those  indiscretions  and  surround  themselves 
with  the  circumstances  which,  by  the  common  consent  of  mankind, 
based  upon  human  experience  and  observation,  lead  to  but  one  con- 
clusion,—that  of  the  existence  of  an  adulterous  relation  between 
them, — they  can  have  no  reason  to  expect  that  courts  of  justice  will 
put  a  different  interpretation  upon  their  conduct,  and  by  some  pro- 
cess of  artificial  reasoning  refuse  belief  when  all  the  world  would 
be  convinced.'"^ 

§  2794.  Inference  from  particular  circumstances. — Wliile  the 
crime  of  adultery  is  usually  established  by  circumstantial  evidence 
or  inferred  from  a  chain  of  circumstances  proved,  yet  there  are  cer- 
tain circumstances  from  the  proof  of  which  inferences  naturally  arise 
which  are  received  and  accepted  by  courts  with  the  credit  of  prac- 

State  V.  Austin,  108  N.  Car.  780,  13  W.   563;    Swancoat  v.   State,  4  Tex. 

S.  E.   219;    State  v.   Stubbs,   108  N.  App.  105;  State  v.  Bridgman,  49  Vt. 

Car.    744,    13    S.    E.    90;     Common-  202,  24  Am.  124;   State  v.  Colby,  51 

wealth  V.  Hosier,  135  Pa.  St.  221,  19  Vt.  291;   Baker  v.  United  States,  1 

Atl.    943;     Commonwealth    v.    Bell,  Finn.   (Wis.)  641. 

166  Pa.  St.  405,  31  Atl.  123;    Kahn  ^  Berckmans  v.  Berckmans,  16  N. 

V.  State,  (Tex.)  38  S.  W.  989;  Stew-  J.  Eq.  122. 

art  V.  State,    (Tex.)    43   S.  W.  979;  « Crane  v.  People,  168  111.  395,  48 

Bradshaw  v.  State,   (Tex.)   61  S.  W.  N.  E.  54;   Carotti  v.  State,  42  Miss. 

713;    Lenert  v.  State,    (Tex.)    63   S.  334,  97  Am.  Dec.  465. 


§    2795.]  ADULTERY.  94 

tical  certainty.  Of  these,  one  is,  that  where  it  is  shown  that  a  man 
and  woman,  not  husband  and  wife,  occupied  the  same  room  with  but 
a  single  bed  for  a  night  or  for  any  considerable  length  of  time,  it 
has  almost  invariably  been  held  to  be  sufficient  to  warrant  the  in- 
ference of  the  act  of  adultery ;  and  proof  of  the  continued  occupancy 
iinder  the  same  circumstances  is  held  sufficient  to  establish  adulter- 
ous cohabitation.''  Another  circumstance  from  which  it  is  held  that 
guilt  may  be  inferred  is  where  the  proof  shows  that  a  married  man 
associated  with  a  known  j)rostitute.^  Or  when  a  married  man  is  seen 
to  enter  a  house  of  prostitution  and  is  known  to  be  in  a  room  with  a 
common  prostitute  sufficient  time  to  commit  the  act,  adultery  will 
be  inferred.^  But  even  such  a  visit  is  subject  to  explanation  and  the 
incriminating  inference  may  be  fully  rebutted.^" 

§  2795.  Cohabitation  or  living  in  adultery. — Under  the  statutes  of 
many  states  in  order  to  constitute  the  crime  of  adultery  there  must 
be  proof  of  cohabitation.  Indeed  some  of  the  statutes  make  the  crime 
consist  in  living  together  in  a  state  of  adultery.  Under  such  a  stat- 
ute to  warrant  a  judgment  of  conviction  the  proof  must  show  that  the 
persons  dwelt  or  lived  together.  The  offense  was  described  by  an 
early  Illinois  case  as  follows :  "In  order  to  constitute  this  crime  the 
parties  must,  dwell  together  openly  and  notoriously,  upon  terms  as 
if  the  conjugal  relation  existed  between  them,  in  other  words,  they 
must  cohabit  together.  There  must  be  an  habitual  illicit  intercourse 
between  them.  The  object  of  the  statute  was  to  prohibit  the  public 
scandal  and  disgrace  of  the  living  together  of  persons  of  opposite 
sexes  notoriously  in  illicit  intimacy,  which  outrages  public  decency, 
having  a  demoralizing  and  debasing  influence  upon  society.  They 
may,  indeed,  live  together  in  the  same  family ;  but  if  apparently 
chaste,  regularly  occupying  separate  apartments,  a  single  instance 

^  Daily  v.  Daily,  64  111.  329;  "  Astley  v.  Astley,  1  Hagg.  Con. 
Names  v.  Names,  67  Iowa  383,  25  N.  714;  Richardson  v.  Richardson,  4 
W.  671:  Commonwealth  v.  Clifford,  Port.  (Ala.)  467;  Evans  v.  Evans,  41 
145  Mass.  97.  13  N.  E.  345;  Culver  Cal.  103;  Commonwealth  v.  Gray, 
v.  Culver,  38  N.  J.  Eq.  163;  State  v.  129  Mass.  474;  Van  Epps  v.  Van 
Brooks,  108  N.  Car.  780;  Common-  Epps,  6  Barb.  (N.  Y.)  320;  Lang- 
wealth  v.  Mosier,  135  Pa.  St.  221,  19  staff  v.  Langstaff,  Wright  (Ohio) 
Atl.    943;    Richardson    v.    State,    34  148. 

Tex.    142;    Parks   v.    State,    4    Tex.  "Latham    v.    Latham.    30    Gratt. 

App.  134.  (Va.)    307;    2    Bishop   Mar.    Div.    & 

'^  Ciocci   V.    Ciocci,    26    Eng.    L.    &  Sep.,  §  1384. 
Eq.  604. 


95  PROOF  NOT  LIMITED  TO  TlilE  AXD  PLACE.  [§    279G. 

of  illicit  intercourse  surely  would  not  constitute  the  crime  of  living 
together  in  an  open  state  of  fornication."^^  The  Supreme  Court  of 
Nebraska  speak  of  this  crime  as  follows :  "That  the  defendant  did 
wantonly  cohabit  with  the  woman  in  a  state  of  adultery.  To  cohabit, 
according  to  the  sense  in  which  the  word  is  used  in  the  statute  means 
dwelling  together  as  husband  and  wife,  or  in  sexual  intercourse,  and 
comprises  a  continued  period  of  time.  Hence  the  offense  is  not  the 
single  act  of  adultery ;  it  is  cohabiting  in  a  state  of  adultery ;  and  it 
may  be  a  week,  a  month,  a  year  or  longer,  but,  still  it  is  one  offense 
only.''^-  So  where  the  statute  makes  criminal  the  living  "in  a  state  of 
open  and  notorious  cohabitation  and  adultery,"  it  has  been  held  that 
the  charge  was  not  sufficiently  sustained  by  proof  of  a  single  act  or  oc- 
casional acts;  but  that  in  order  to  sustain  a  conviction  proof  of 
notoriety  was  essential  to  establishing  the  offense. ^^ 

§  2796.  Proof  not  limited  as  to  time  or  place. — The  ordinary  rule 
of  the  proof  being  limited  to  the  time  and  place  as  charged  in  the 
indictment  does  not  apply  generally  to  cases  of  persons  charged  with 
living  together  in  a  state  of  adultery.  It  seems  to  be  the  very  gen- 
erally accepted  rule  that  proof  of  acts  of  familiarity  and  conduct  be- 
tween parties  is  not  limited  to  the  time  of  the  return  of  the  indict- 
ment nor  even  to  the  jurisdiction  of  the  court  in  which  the  charge 
was  made.  This  rule  is  more  fully  stated  as  follows:  "Whatever 
may  have  been  said  to  the  contrary  in  certain  cases,  it  must  now  be 
regarded  as  settled  law  that  in  such  cases  prior  acts  of  improper 
familiarity,  or  of  adultery,  between  parties;  whether  they  occurred  in 
the  same  jurisdiction  or  not,  and  even  subsequent  acts  which  tend 
to  show  a  continued  illicit  relation  between  them,  may  be  proved  in 
explanation  of,  or  as  characterizing,  the  acts  and  conduct  of  the  par- 

"  Crane  V.  People,  168  111.  395,  48  "People    v.    Gates,    46    Cal.    52; 

N.   E.   54;    Miner  v.   People,   58   111.  White  v.  White,  82  Cal.  427,  23  Pac. 

59;   State  v.  Chandler,  96  Ind.  591;  276;     Wright    v.    State,    5    Blackf. 

Jackson  v.   State,   116    Ind.   464,   19  (Ind.)    358;     State    v.    Gartrell,    14 

N.  E.  330;    Van  Dolsen  v.   State,   1  Ind.    280;    Gaylor    v.    McHenry,    15 

Ind.  App.  108,  27  N.  E.  440;  State  v.  Ind.  383;   State  v.  Stephens,  63  Ind. 

Smith,   18   Ind.   App.   179,   47   N.  E.  542;    State   v.    Coffee,    39    Mo.    App. 

685;   Carottl  v.  State*  42  Miss.  334,  56;    Morrill   v.    State,    5    Tex.   App. 

97   Am.    Dec.    465;    Smith   v.    State,  447;    Miner    v.    People.    58    111.    59; 

39  Ala.  554;  Qiiartemas  v.  State,  48  State  v.  Marvin,  12  Iowa  499;  Com- 

Ala.  269;  Smith  v.  State.  86  Ala.  57.  monwealth  v.  Calef,  10  Mass.  153; 

6  So.  71.  State  v.  Jolly,  3  Dev.  &  B.  (N.  Car.) 

«  State  V.  Way,  5  Neb.  283.  110. 


g    2797.]  ADULTERY.  96 

ties  complained  of  as  constituting  the  particular  offense  charged."^* 
Evidence  of  alleged  conduct  prior  to  the  time  the  parties  lived  in  the 
jurisdiction  in  which  the  indictment  was  returned,  as  well  as  proof 
of  conduct  since  the  return  of  the  indictment  has  heen  held  competent 
for  the  purpose  of  giving  color  or  characterizing  the  conduct  of  the 
parties  while  within  the  jurisdiction  and  prior  to  the  return  of  the 
indictment.^  ^ 

^  2797.  Rule  as  to  single  act. — Under  the  statutes  which  make 
adultery  or  fornication  in  themselves  a  crime,  proof  of  a  single  act 
is  sufficient  to  establish  the  guilt  of  the  accused.  But  under  stat- 
utes which  make  cohabitation,  or  living  together  in  a  state  of  adultery, 
a  crime,  proof  of  a  single  act  alone  is  not  sufficient  to  establish 
guilt,  although  proof  of  a  single  act  in  connection  with  other  things 
might  be  sufficient.  It  is  obvious,  however,  that  such  statutes  do  not 
intend  to  punish  either  a  single  act,  or  occasional  acts,  of  criminal 
intercourse.  The  punishment  is  directed  against  the  condition  of 
cohabitation  or  the  living  together  in  such  a  state,  as  distinguished 
from  a  single  act  or  occasional  acts.  Proof  of  this  state  or  condition 
is  sufficient  regardless  of  the  time  for  which  it  has  existed.  Of  this 
rule  the  Alabama  court  has  said :  "It  is  a  state  or  condition  of  co- 
habitation, as  distinguished  from  a  single  or  occasional  acts  that  it 
was  intended  to  reach,  designed  by  the  parties  as  continuous,  so  long 
as  they  chose.  This  state  or  condition  may  well  be  assumed  by  them 
in  a  single  day,  if  such  is  their  purpose,  as  any  other  state  or  con- 
dition may  be  so  assumed.  If  for  a  single  day  they  live  together  in 
adultery,  intending  a  continuance  of  the  connection,  the  offense  is 
complete,  though  it  may  be  interrupted  or  broken  off  by  a  prose- 
cution, or  the  fear  of  prosecution,  or  from  any  other  cause.    The 

"Crane  v.  People,  168  111.  395,  48  N.  J.  L.  289,   47  Atl.  583;    State  v. 

N.    E.    54;    Thayer   v.    Thayer,    101  Stubbs,   108   N.    Car.    774,    13    S.    E. 

Mass.  Ill;  Pond  v.  Pond,  132  Mass.  90;   State  v.  Guest,  100  N.  Car.  410, 

219;  State  v.  Way,  5  Neb.  283;  Com-  6  S.  E.   253;    State  v.  Wheeler,  104 

monwealth    v.    Nichols,    114    Mass.  N.  Car.  893,  10  S.  E.  491;   Common- 

285;    Lawson  v.   State,   20  Ala.   65;  wealth  v.    Mosier,   135   Pa.   St.   221, 

People  v.  Jenness,  5  Mich.  305;  Peo-  19  Atl.  943;  Richardson  v.  State,  34 

pie  v.  Clark,  33  Mich.   112;    People  Tex.   142;    Thayer  v.   Davis,   38  Vt. 

v.  Davis,  52  Mich.  569,  18  N.  W.  362;  153;  State  v.  Bridgman,  49  Vt.  202; 

People  v.  Hendrickson,  53  Mich.  525,  State  v.  Potter,  52  Vt.  33. 
19  N.  W.  169;  State  v.  Wallace,  9  N.         ^=  Crane  v.  People,  168  111.  395,  48 

H.  515;  State  v.  Shover,  64  N.  J.  L.  N.  E.  54.    See  also.  Vol.  I,  §  176. 
65,  44  Atl.  850;   State  v.  Snover,  65 


^7  MARRIAGE.  [§§  2798,  2799. 

ti*ue  inquiry  is,  and  one  a  jury  will  scarcely  err  in  determining  cor- 
rectly, when  the  circumstances  are  in  evidence,  was  it  a  living  to- 
gether, or  a  mere  single  act  of  illicit  intercourse;  was  it  cohabita- 
tion, looking  to  the  intent  of  the  parties,  or  a  mere  adulterous  inti- 
macy without  any  purpose  of  its  continuance?"^" 

§  2798.  Marriage — Proof  of  necessary. — In  prosecutions  for 
adultery  under  the  statutes  of  the  several  states  generally  it  is  ab- 
solutely essential  that  the  proof  sliow  that  at  the  time  of  the  alleged 
adulterous  intercourse  one  of  the  parties  was  lawfully  married  to 
some  person  other  than  the  one  with  whom  the  alleged  act  of  adultery 
was  committed.  In  other  words,  proof  of  marriage  is  necessary  to 
sustain  a  conviction  under  such  statutes."  And  it  is  held  in  some 
jurisdictions  that  a  marriage  in  fact  as  distinguished  from  one  that 
may  be  inferred  from  circumstances  must  be  proved  in  criminal 
cases.^^ 

§  2799.  Marriage — Method  of  proving. — On  this  question  of  the 
method  of  making  proof  of  marriage  the  Supreme  Court  of  Xew 
Hampshire  has  very  aptly  stated  the  rule  as  follows :  "Proof  of  a 
marriage,  then,  may  be  made  in  various  ways,  according  to  the  na- 
ture of  the  proceeding  in  which  the  proof  is  required.  In  civil  ac- 
tions, excepting  that  for  criminal  conversation,  it  may  be  inferred 
from  those  circumstances  which  generally  accompany  a  marriage, 
such  as  acknowledgment,  reputation,  cohabitation,  etc.  But  in  crimi- 
nal prosecutions,  like  indictments  for  bigamy,  adultery,  etc.,  direct 

■'"Hall  V.  State,  53  Ala.  463;  State  Parks   v.    State,   4    Tex.    App.    134; 

V.  Glaze,  9  Ala.  283;  Collins  V.  State,  Richardson   v.    State,   37    Tex.    346; 

14  Ala.  608;  Linton  v.  State,  88  Ala.  Traverse  v.   State.   61  Wis.   144,   20 

216,  7  So.  261;  Walker  v.  State,  104  N.  W.  724;  State  v.  Marvin,  12  Iowa 

Ala.  56,  16  So.  7;   Wright  v.  State,  499;     Commonwealth    v.    Calef,    10 

108  Ala.   60,   18   So.   941;    Luster  v.  Mass.  153;   Collum  v.  State,  10  Tex. 

State,   23   Fla.   339;    Baily  v.   State,  App.  708. 

36  Neb.   808,  55  N.  W.   241;    Searls         "Buchanan  v.  State,  55  Ala.  154; 

V.  People,  13  111.  597;  State  v.  Way.  State  v.    Schweitzer.   57   Conn.   532. 

5  Neb.  283;  State  v.  Kirkpatrick,  63  18    Atl.    787;    State   v.    Sanders,    30 

Iowa   554,   19   N.   W.   660;    State   v.  Iowa  582;    State  v.   Coffee,   39    Mo. 

Crowner,  56  Mo.  147;   State  v.  Gar-  App.  56;  Lord  v.  State,  17  Neb.  526, 

trell,    14    Ind.    280;     Granberry    v.  23  N.  W.   507;    Tucker  v.  State,  35 

State,  61  Miss.  440;  People  v.  Gates,  Tex.  113. 

46  Cal.  52;   Miner  v.  People,  58  111.         "State  v.  Hodgskins,  19  Me.  155: 

59;   McLeland  v.  State,  25  Ga.  477;  State  v.  Coffee,  39  Mo.  App.  56. 
Swancoat  v.  State,  4  Tex.  App.  105; 
Vol.  4  Elliott  Ev.— 7 


§§    2800,   2801. J  ADULTERY.  98- 

evidence  of  the  marriage  is  required,  and  this  may  appear  from  the 
testimony  of  witnesses  who  were  present  at  the  ceremony.  This  con- 
stitutes proof  of  a  marriage  in  fact,  and  is  merely  direct  evidence  of 
the  marriage,  as  contradistinguished  from  cohabitation,  etc.,  which  is 
indirect  evidence  of  the  marriage." ^^  But  it  is  held  that  in  this  class 
of  cases  proof  of  marriage  cannot  be  made  by  reputation  or  general 
repute.^" 

§2800.  Marriage — Proof  by  records. — The  proof  of  sucli  mar- 
riage may  be  made  by  the  proper  legal  record ;  but  such  documentary 
evidence  must  be  lawful;  it  must  comply  strictly  with  the  require- 
ments of  the  law  and  must  be  complete.-^  And  where  the  proof  is 
attempted  to  be  made  by  introducing  in  evidence  the  marriage  cer- 
tificate in  order  to  make  this  sufficient  it  must  be  followed  by  proof 
of  the  identity  of  the  persons.  The  correspondence  of  the  names  of 
the  persons  mentioned  in  the  marriage  certificate  and  named  in  the 
indictment  is  not  sufficient  in  the  absence  of  such  proof  of  identity. 
In  other  words,  the  persons  accused  must  be  proved  to  be  the  per- 
sons lawfully  married.'^ 

§  2801.  Marriage — Proof  by  persons  present. — So  the  marriage 
may  be  proved  by  the  testimony  of  persons  who  were  actually  present 
and  witnessed  the  ceremony.^^  In  making  proof  of  the  marriage 
ceremony  it  has  been  held  that  the  proof  must  show  the  ceremony 
such  as  the  law  requires  in  such  cases.  And  in  addition  to  the  proof 
of  the  ceremony  it  must  be  shown  that  the  person  performing  the 
ceremony  was  clothed  with  legal  authority  for  that  purpose.  The  very 
purpose  of  requiring  the  testimony  of  the  person  present  at  the  mar- 
riage is  to  show  its  validity  and  legality  and  to  prove  that  all  the 

''State  v.  Winkley,  14  N.  H.  480;  492;   People  v.  Broughton,  49  Mich. 

State  v.   Schweitzer,   57   Conn.   532,  339,  13  N.  W.  621;   State  v.  Brecht, 

18  Atl.  787;   Lord  v.  State,  17  Neb.  41  Minn.  50,  42  N.  W.  602;   State  v. 

526,  23  N.  W.  507.  Wallace,  9  N.  H.  515;  State  v.  Wink- 

•-■"  Morgan    v.    State,    11    Ala.    289;  ley,  14  N.  H.  480. 
Buchanan  v.  State,  55  Ala.  154;  Ow-  '^Commonwealth    v.    Norcross  .  9 
ens  V.  State,  94  Ala.  97,  10  So.  669;  Mass.  492;  Commonwealth  v.  Little- 
State  v.  Coffee,  39  Mo.  App.  56.  John,    15     Mass.    163;     Wedgwood's 

=' Commonwealth  v.  Littlejohn,  15  Case,   8   Me.   75;    Lord  v.   State,   17 

Mass.  163;    State  v.  Winkley,  14  N.  Neb.    526,    23    N.   W.    507;    State   v. 

H.  480;  State  v.  Colby,  51  Vt.  291.  Marvin,  35  N.  H.  22;  State  v.  Rood. 

"Wedgwood's     Case,    8     Me.     75;  12  Vt.  396. 
Commonwealth  v.  Norcross,  9  Mass. 


99  MARRIAGE.  [§§  2802-2S04. 

circumstances  attending  the  ceremony  were  such  as  to  constitute  in 
fact  a  legal  marriage.  It  is  therefore  held  essential  in  such  cases  to 
show  that  the  person  solemnizing  the  marriage  was  within  some  of  the 
classes  of  persons  legall}^  authorized  so  to  do.^* 

§  2802.  Proof  of  marriage — Admissions,  etc. — In  prosecutions  for 
adultery  it  has  been  held  in  some  jurisdictions  that  the  prior  admis- 
sions, declarations  and  conduct  of  the  accused,  the  holding  out  to  tJie 
world  that  such  relation  does  exist  between  parties  who  are  living 
together,  are  admissible  for  the  purpose  of  proving  the  marriage.-" 

§  2803.  Proof  of  marriage — Prima  facie  case. — But  proof  for  this 
purpose  may  be  sufficient  which  nuikes  a  prima  facie  case.  For  in- 
stance, proof  that  the  person  officiating  was  and  had  been  for  many 
years  an  acting  minister;  that  he  was  in  the  habit  of  performing 
ministerial  duties;  that  he  witnessed  the  contract  of  marriage  in  his 
official  capacity  or  proof  of  any  other  facts  or  circumstances  which 
show  that  ho  comes  within  the  specified  statutory  class  is  sufficient.-** 
Where  proof  of  any  formal  marriage  is  made  and  is  followed  by  proof 
showing  subsequent  cohabitation  and  the  parties  recognize  each  other 
as  husband  and  wife,  it  has  been  held  to  be  sufficient  prima  facie 
proof  of  the  marriage.^^ 

§  2804.     Invalid  marriage  as  a  defense — Burden  of  proof. — It  is 

almost  the  universalh^  conceded  rule  that  a  marriage  between  two 

^*  State  V.  Hodgskins,  19  Me.  155;  Mich.   250.   68   N.   W.   157;    State   v. 

People   v.   Isham,   109   Mich.   72.   67  McDonald,    25    Mo.    176;     State    v. 

N.  W.  819;  State  v.  Brecht,  41  Minn.  Behrman,  114  N.  Car.  797,  19  S.  E. 

50,  42  N.  W.  602;   Lord  v.  State,  17  220;    Wolverton    v.    State,    16    Ohio 

Neb.  526.  23  N.  W.  907.  173;    Commonwealth    v.    Manock,    2 

^Cameron   v.   State,   14   Ala.   546,  Cr.  L.  Mag.  239;   State  v.  Medbury, 

48  Am.  Dec.  Ill;  Buchanan  v.  State,  8  R.  I.  543;  State  v.  Hilton,  3  Rich. 

55   Ala.    154;    Langtry   v.    State,    30  (S.   Car.)    434;    Boger   v.    State.    19 

Ala.  536;  Owens  v.  State,  94  Ala.  97,  Tex.  App.  91. 

10  So.  669;  Cook  v.  State,  11  Ga.  =«  Goshen  v.  Stonington,  4  Conn. 
53,  56  Am.  Dec.  410;  Wood  v.  State,  209;  State  v.  Brecht,  41  Minn.  50, 
62  Ga.  406;  State  v.  Sanders,  30  42  N.  W.  602;  Londonderry  v.  Ches- 
lowa  582;  Gayford's  Case,  7  Me.  57;  ter,  2  N.  H.  268,  276;  State  v.  Wink- 
Ham's  Case,  11  Me.  391;  State  v.  ley,  14  N.  H.  480;  Lord  v.  State.  17 
Libby,  44  Me.  469,  69  Am.  Dec.  115;  Neb.  526,  23  N.  W.  507. 
Commonwealth  v.  Thompson,  99  -"State  v.  Winkley,  14  N.  H.  480: 
Mass.  444;  Commonwealth  v.  Holt,  State  v.  Rood,  12  Vt.  396. 
121  Mass,  61;    People  v.   Imes,   110 


§    2805.]  ADULTERY,  100 

persons  is  invalid  where  either  at  the  time  has  a  hiishand  or  a  wife 
living.  But  to  make  cohabitation  under  such  a  marriage  adulterous 
the  proof  must  show  that  the  accused  person  knew  that  the  other 
party  to  the  marriage  had  a  legal  consort.  The  rule  is  that  cohabita- 
tion which  follows  a  prima  facie  valid  marriage  is  a  protection 
against  the  charge  or  crime  of  adultery,  in  the  absence  of  knowledge 
that  either  of  the  parties  was  at  the  time  married  to  another  person. 
Thus  it  has  been  held  that  a  woman  could  not  be  convicted  on  a  charge 
of  adultery  where  the  cohabitation  followed  a  legitimate  marriage 
ceremony,  notwithstanding  the  fact  that  the  supposed  husband  had 
a  wife  living,  in  the  absence  of  proof  that  the  accused  knew  that  her 
supposed  husband  had  a  legal  wife.  The  burden  is  upon  the  state  to 
prove  such  knowledge  on  the  part  of  one  accused  under  such  cir- 
cumstances in  cases  only,  however,  where  the  alleged  adulterous  co- 
habitation followed  a  prima  facie  valid  marriage.  In  such  cases  in 
the  absence  of  such  knowledge  a  woman  could  be  neither  morally  or 
legally  guilty  of  a  crime. -^  But  mere  suspicion  will  not  supply  the 
proof  of  such  knowledge.  Proof  of  such  circumstances  or  situation  as 
to  raise  the  presumption  that  the  accused  must  have  known  of  the  fact 
might  be  sufficient.  But  such  proof  or  presumption  must  be  strong 
enough  to  overcome  or  repel  all  reasonable  doubt. ^^ 

§  2805.  Invalid  divorce — No  defense. — So  where  the  husband  or 
wife  procures  a  divorce  and  is  again  married  and  the  decree  of  di- 
vorce for  any  reason  is  shown  to  be  invalid,  the  subsequent  cohabita- 
tion has  been  held  to  be  adulterous  and  criminal  and  the  marriage 
no  defense.^"  And  where  a  husband  and  wife  separate  and  the  hus- 
band thereafter  marries  this  is  not  a  sufficient  excuse  for  the  wife 
re-marrying  without  having  procured  a  divorce;  it  has  been  held  in 
such  a  case  that  the  subsequent  illegal  marriage  of  one  was  not  a  li- 
cense to  the  other,  and  neither  was  ignorance  of  the  law  sufficient 
excuse.'^ 

='  Banks  v.  State,  96  Ala.  78.  11  So.  ='  Vaughan  v.  State.  83  Ala.  55,  3 
404;  Commonwealth  v.  Munson,  127     So.  530. 

Mass.  459;  Hildreth  v.  State,  19  ="  State  v.  Whitcomb,  52  Iowa  85. 
Tex.  App.  195;  Swancoat  v.  State,  2  N.  W.  970;  State  v.  Watson,  20  R. 
4  Tex.  App.  105.  I.  354.  39  Atl.  193. 

^' State  v.  Goodenow,  65  Me.  30. 


CHAPTER  CXXXII. 


ARSON. 


Sec. 

2806.  Generally. 

2807.  Presumptions. 

2808.  Burden  of  proof. 

2809.  Questions  of  law  or  fact. 

2810.  Evidence  of  motive. 

2811.  Evidence  of  threats. 

2812.  Evidence      of      previous 

tempts. 


at- 


Sec. 

2813.  Evidence    of    other    fires    and 

crimes. 

2814.  Evidence  of  certain  facts  con- 

cerning     the      property 
burned. 

2815.  Admissions  and  confessions. 

2816.  Evidence  in  general. 


2806,     Generally. — x\rson,  at  common  law,  is  the  act  of  imlaw- 

>fully    and    maliciously    burning   the   house    of    another.     The   word. 

j'liouse,"  as  here  understood,  includes  not  merely  the  dwelling-house, 

)ut  all  outhouses  which  are  parcel  thereof.^    Under  many  statutes 

irson  is  the  wilful  and  malicious  burning  of  a  building  with  intent 

to  destroy  it,  and  under  some  of  tlie  statutes  arson  is  divided  into  cle- 

ijrees.     There  must  be  a  burning,  although  not  necessarily  an  entire 

lestruction  of  the  building  or  any  material  part,-  but  malice  is  an 

|ssential  element,  although  it  may  often  be  inferred,  and  the  corpus 

ielicti  is  said  to  consist  not  only  in  the  burning  of  the  building  but 

Uso  in  the  fact  that  it  was  burned  by  the  wilful  and  malicious  act 

jf  one  criminally  responsible,  and  not  by  accident  or  natural  causes." 

it  common  law  and  under  some  of  the  statutes  it  is  an  offense  against 

^he  possession   rather  than  against   the  property,   and   a   tenant  in 

ictual  occupancy  of  the  premises,  under  a  lease  of  the  building,  can- 


^  Black  Law  Diet.;  as  to  what  is 
a  house  within  the  meaning  of  that 
term  as  used  in  the  law  relating 
to  arson,  see  71  Am.  St.  266-269, 
note. 

=  See,  Mary  v.  State,  24  Ark.  44, 
81  Am.  Dec.  60;  Graham  v.  State, 
40  La.  659;  State  v.  Dennin,  32  Vt. 
158;   Woodford  v.  People,  62  N.  Y. 


117,  20  Am.  R.  464;  Smith  v.  State, 
23  Tex.  App.  357,  5  S.  W.  219.  59 
Am.  R.  774. 

MVinslow  V.  State,  76  Ala.  42; 
Jesse  V.  State,  28  Miss.  100;  Sam  v. 
State.  33  Miss.  347;  Phillips  v. 
State,  29  Ga.  105;  State  v.  Mitchell, 
5  Ired.  L.  (X.  Car.)  350. 


101 


§  2807.] 


ARSON. 


102 


not  be  held  guilty  of  arson  in  burning  it  ;^  but  under  many  of  the 
statutes  the  rule  is  otherwise.^ 

^  2807,  Presumptions. — Among  the  most  common  presumptions 
that  have  been  held  to  arise  in  prosecutions  for  arson  are  the  follow- 
ing :  The  presumption,  where  a  building  is  burned  and  there  is  noth- 
ing to  the  contrary,  is  that  the  fire  was  caused  by  accident  rather 
than  by  the  deliberate  intentional  act  of  the  accused.*'  But  if  a 
deliberate  act  of  firing  is  proved  a  presumption  may  arise  that  there 
was  an  intent  to  injure  the  owner  or  insurer.^  So,  there  is  gener- 
ally a  presumption  that  one  intends  the  natural  consequence  of  his 
act.s  So  also  it  may  be  inferred  that  one  who  was  alive  in  a  prison 
a  short  time  before  the  Iniilding  was  burned,  was  still  alive  at  the 
time  of  tlie  fire.'-  Direct  proof  of  an  intent  to  commit  arson  is  not 
required.  The  intent  may  be  inferred  from  the  circumstances  at- 
tendant on  the  burning.^"  So,  it  has  been  held  that  the  intent  may 
be  inferred  from  the  hostility  of  the  accused  to  the  owner." 


*  State  V.  Young,  139  Ala.  136,  36 
So.  19;  State  v.  Fish,  27  N.  .1.  L. 
323;  State  v.  Hannett,  54  Vt.  83; 
McNeal  v.  Woods,  3  Blackf.  (Ind.) 
485.  So  where  the  owner  burns  his 
own  building,  of  which  he  is  the  oc- 
cupant. People  v.  De  Winton,  113 
Cal.  403,  45  Pac.  708,  54  Am.  St. 
357;  State  v.  Sarvis,  45  S.  Car.  668, 
24  S.  E.  53,  32  L.  R.  A.  647;  see 
also,  as  to  property  owned  by  hus- 
band and  wife,  Garrett  v.  State,  109 
Ind.  527,  10  N.  E.  570;  Snyder  v. 
People,  26  Mich.  106,  12  Am.  R.  302. 
'•'  See,  Lipschitz  v.  People,  25  Colo. 
261,  53  Pac.  1111;  State  v.  Moore. 
61  Mo.  276;  Allen  v.  State,  10  Ohio 
St.  287;  Kelley  v.  State,  44  Tex.  Cr. 
App.  187,  188,  70  S.  W.  20.  So  un- 
der many  statutes  the  owner  may 
be  convicted  of  arson,  at  least  where 
he  burns  his  building  to  defraud  the 
insurer,  or  the  like.  Shepherd  v. 
People,  19  N.  Y.  537;  Common- 
wealth V.   Bradford,  126   Mass.   42; 


Meister  v.  People,  31  Mich.  99; 
State  V.  Kurd,  51  N.  H.  176;  State 
V.  Byrne,  45  Conn.  273;  People  v. 
Hughes,  29  Cal.  257;  Erskine  v. 
Commonwealth,  8  Gratt.  (Va.)  624; 
State  V.  Elder,  21  La.  Ann.  157; 
State  V.  Babcock,  51  Vt.  570. 

"  Phillips  V.  State,  29  Ga.  105. 

"State  V.  Jaynes,  78  N.  Car.  504; 
State  V.  Byrne,  45  Conn.  273;  Com- 
monwealth V.  Harney,  10  Mete. 
(Mass.)  422;  People  v.  Vasalo.  120 
Cal.  168,  52  Pac.  305;  Rex  v.  Far- 
rington.  R.  &  R.  207. 

« State  V.  Phifer,  90  N.  Car.  721; 
see  also,  Morris  v.  State,  124  Ala. 
44,  27  So.  336. 

"Childress  v.  State,  86  Ala.  77,  5 
So.  775. 

'"Commonwealth  v.  Goldstein,  114 
Mass.  272;  State  v.  Lytle,  117  N. 
Car.  799,  23  S.  E.  476. 

"  State  V.  Crawford,  99  Mo.  74,  12 
S.  W.  354. 


103  BURDEN  OF  PROOF.         [^§  2808,  2S03. 

§  2808.  Burden  of  proof. — The  burden  of  proof  is  on  the  state 
to  prove  the  commission  of  the  act  by  the  accused,  and  the  defend- 
ant's guilt  must  be  proved  beyond  a  reasonai)le  doubt.^-  Thus,  it 
must  be  proved  beyond  a  reasonable  doubt  that  the  burning  was  wil- 
fully and  maliciously  caused  by  some  person  who  was  morally  re- 
sponsible for  his  actions."  So  the  prosecution  generally  has  the  bur- 
den of  proving  beyond  a  reasonable  doubt  tliat  the  accused  was  per- 
sonally present  where  he  could  have  committed  the  offense.^*  The 
dwelling  or  other  building  must  be  proved  substantially  as  laid  in  the 
indictment.^^  But  description  and  proof  by  street  and  number,  or 
by  its  proximity  to  well-known  landmarks,  is  sufficient  to  sustain  the 
venue.^*^  The  ownership  of  the  building  need  not  be  strictly  proved, 
unless  it  is  an  essential  element  of  the  crime,  as  when  one  is  in- 
dicted for  setting  fire  to  his  own  house.^'  So,  where  the  indictment 
averred  that  the  ownership  of  the  building  was  unknown  to  the  grand 
jury,  it  was  held  that  it  was  unnecessary  to  prove  such  averment.^^ 
It  need  not  be  shown  that  the  wood  blazed,  but  proof  that  the  wood 
or  other  inflammable  material  was  charred  so  as  to  destroy  the  fiber 
or  identity  is  generally  required.  A  mere  discoloration  or  scorching 
black  by  smoke  or  heat  is  not  enough. ^^ 

^  2809.  Questions  of  law  or  fact. — Whether  there  was  a  burning 
within  the  meaning  of  the  statute  as  explained  by  the  court,  has  been 
held  a  question  of  fact  for  the  jury.-"  And  whether  an  incomplete 
building  was  so  far  advanced  toward  completion  as  to  be  a  "build- 
ing^'' within  the  statute  was  held  to  be  a  question  for  the  jury.-^    So, 

'-McMahon  v.  State,  17  Tex.  App.  ^"Woolsey  v.   State,   30  Tex.  App. 

321;   Clark  v.  State,  37  Ga.  191.  346,  17  S.  W.  546;   State  v.  Hall,  93 

"Thomas    v.    State,    41    Tex.    27;  N.  Car.  571;    see,  however,  for  evi- 

Brown    v.    Commonwealth,    87    Va.  dence    of    burning    held    sufficient. 

215,  12  S.  E.  472;   Jesse  v.  State,  28  People  v.  Simpson,  50  Cal.  304;  Peo- 

Miss.  100;   Jenkins  v.  State,  53  Ga.  pie  v.  Haggerty,  46  Cal.  355;    State 

33;   Winslow  v.  State,  76  Ala.  42.  v.   Spiegel,  111  Iowa  701,  83  N.  W. 

"People  V.  Fairchild,  48  Mich.  31,  722;    Commonwealth  v.  Tucker,  110 

11  N.  W.  773.  Mass.    403.    Boards   showing  marks 

'^  State  v.  Jeter,  47   S.  Car.  2,  24  of   fire   have   been   held   admissible. 

S.  E.  889.  Commonwealth    v.    Betton.    5    Cash. 

■"People  v.  Handley,  100  Cal.  370.  (Mass.)    427. 

34  Pac.  853.  ^  Commonwealth     v.      Betton.      5 

"People  v.  Handley,  100  Cal.  370.  Cush.    (Mass.)   427. 

34  Pac.853.  "^  Commonwealth     v.     Squire,     42 

"Childress   v.    State.    86    Ala.    77,  Mass.   258. 
5  So.  775. 


§  2810.]  ARSON.  104 

where  one  is  charged  with  the  burning  of  a  barn  and  the  evidence 
shows  that  he  set  fire  to  a  hay-stack,  from  which  the  barn  ignited,, 
the  motive  of  the  defendant  is  a  question  of  fact  for  the  jury.^^  And 
where  it  is  charged  that  there  was  a  setting  afire  with  intent  to  de- 
fraud some  one,  the  question  of  intent  should  be  submitted  to  the 
jury.^^  So,  of  course,  it  is  for  the  jury  to  determine  whether  the  ac- 
cused is  the  guilty  party. 

§  2810.  Evidence  of  motive. — Motive  may  be  shown  in  many 
ways.  It  may  be  shown  by  evidence  of  threats  and  ill-feeling  toward 
the  owner  of  the  building  destroyed.^*  And  evidence  that  defendant 
in  an  indictment  for  arson  in  burning  his  own  dwelling  was  on  bad 
terms  with  his  wife,  has  been  held  admissible  to  show  that  he  would 
readily  do  an  act  to  endanger  her  safety.-^  So,  where  one  has  ill- 
will  against  the  owners  of  a  building  on  account  of  their  interfer- 
ence and  objections  in  his  love  affairs,  evidence  of  such  fact  is  admis- 
sible as  tending  to  show  that  the  defendant  committed  the  crime  in 
revenge.28  And  evidence  of  ill-will  to  the  members  of  the  family  of 
the  occupant  of  the  premises  is  admissible  for  purpose  of  showing  a 
motive  for  the  act,  even  though  such  members  did  not  reside  on  the 
premises."  Evidence  that  the  defendant  threatened  to  sue  the  owner 
and  make  him  "sweat"  because  he  suspected  the  defendant  of  rob- 
bing his  house,  is  competent  to  show  ill-will  by  defendant  to  the 
owner  as  a  motive  for  the  crime.^^  And  so  a  declaration  made  by  the 
accused  that,  as  he  had  been  put  out  of  a  building,  no  one  would 
ever  prosper  in  that  place,  or  threats  of  bodily  harm  made  by  him 
and  directed  against  the  owner,  are  admissible  to  show  malice  or 
ill-will.^'^  But  it  has  been  held  that  the  ill-will  of  defendant,  in- 
dicted for  burning  property,  toward  the  agent  of  the  owner  of  the- 
property,  is  not  admissible  to  prove  a  motive,  in  the  absence  of  evi- 
dence of  threats  against  the  latter,  or  of  any  facts  tending  to  show 
that  defendant's  ill-will  had  extended  to  the  owner.^"    It  may  be 

"  State  v.  Roberts,  15  Ore.  187,  13  ="  State  v.   Thompson,   97   N.   Car. 

Pac.  896.  496,  1  S.  E.  921. 

=^  State  V.  Phifer,  90  N.  Car.  721.  =»  Commonwealth     v.     Quinn,     150 

-'Hinds  v.  State,  55  Ala.  145.  Mass.  401,  23  N.  E.  54. 

==  Shepherd    v.    People,    19    N.    Y.  =°  People  v.   Eaton,   59   Mich.   559, 

537.  26   N.   W.   702;    Ford   v.    State,   112 

^«  State  V.   Ward,   61   Vt.   153,   17  Ind.  373,  14  N.  E.  241. 

Atl.  482.  '"  State  v.  Battle,  126  N.  Car.  1036, 

35  S.  E.  624. 


105  MOTIVES THREATS.  [§    2811- 

shown  that  the  motivo  of  the  defendant  was  the  profitable  collection 
of  insurance.^ ^  Thus,  in  a  prosecution  against  the  insured  for  burn- 
ing the  property,  it  is  competent  to  prove  an  overvaluation  of  the 
propert}^  insured,  and  a  demand  by  him  for  such  valuation,  for  the 
purpose  of  showing  a  motive.^^  And  evidence  of  over-insurance  upon 
the  goods  of  the  accused  destroyed  by  fire  has  been  held  competent,, 
as  tending  to  show  probable  or  possible  motive  where  the  testimony 
was  all  circumstantial.^^  So,  in  a  prosecution  for  arson  charging  the 
defendant  with  attempting  to  destroy  his  storeroom,  filled  with  goods, 
in  which  it  appeared  that  the  goods  were  insured  for  $14,000,  evidence 
was  held  admissible  that  the  defendant,  in  applying  for  a  traders' 
license,  had  stated  under  oath  that  he  intended  to  carry  in  trade 
a  stock  not  exceeding  $4,000  in  busy  seasons.^*  And  evidence  of  the^ 
conduct  of  the  owner  of  the  buildings  when  present  at  the  fire,  and 
of  the  value  of  the  buildings,  was  held  admissible  where  it  was  con- 
tended that  the  defendant  fired  the  building  to  obtain  the  insurance 
money.^^  But  evidence  as  to  the  pecuniary  condition  of  a  defendant 
on  trial  for  arson  has  been  held  incompetent.^*'  As  a  general  rule  any 
proper  evidence  of  facts  tending  to  show  a  motive  for  the  crime  is 
admissible.^^  Thus,  it  may  be  proved  that  the  building  burned  had 
papers  in  it  against  the  interest  of  the  accused. ^^  And  it  has  been 
held  that  on  the  trial  on  an  indictment  for  setting  fire  to  a  jail,  the 
indictment  containing  the  charges  for  which  accused  was  in  jail  is 
admissible  on  the  question  of  intent  or  motive. ^^ 

§  2811.  Evidence  of  threats. — As  shown  in  the  last  preceding  sec- 
tion, evidence  of  threats  is  often  admitted.  Thus,  evidence  of  threats 
of  revenge  uttered  by  the  defendant  from  one  to  two  years  before  the- 
fire,  against  the  owner  of  the  building  burned  has  been  held  admis- 
sible.*°  So,  evidence  of  threats  made  by  the  defendant  against  the 
prosecutor  several  months  before  the  commission  of  the  offense  is 

"Commonwealth    v.    Hudson,    97  ="  State  v.   Moore,   24   S.  Car.   150. 

Mass.  565.  58  Am.  R.  241. 

^-  Stitz   V.    State,   104    Ind.    359,    4  "  People  v.  Murphy,  135  N.  Y.  450. 

N.  E.  145.  32  N.  E.  138;   State  v.  Green,  92  N. 

^  State  v.  Cohn,  9  Nev.  179.  Car.  779. 

'*  Hooker  v.  State,  98  Md.  145,  56  ^^Winslow  v.  State,  76  Ala.  42. 

Atl.  390.  ^"Luke    v.    State,    49    Ala.    30,    20 

'=  State   V.    Ward,    61    Vt.    153,    17  Am.  R.  269. 

Atl.  483.  "Commonwealth    v.    Goodwin,    14 

Gray  (Mass.)   55. 


§  2812.]  ARSON.  106 

proper.*^  And  the  length  of  time  which  has  elapsed  between  the  ut- 
terance of  the  threat  and  the  destruction  of  the  building,  though, 
perhaps,  affecting  the  weight  of  the  threat  as  evidence,  has  been  held 
to  be  no  objection  to  its  admission.*^*  But  testimony  tending  to  show 
that  a  stranger  to  the  trial  had  made  threats  against  tlie  person  and 
property  of  the  owner  of  the  burned  house  is  generally  irrelevant,  as 
it  has  no  bearing  on  the  guilt  of  the  accused.'*-  So  evidence  of  the 
owner  of  the  property  burned,  to  the  effect  that  some  one  told  him 
of  threats  made  by  a  person  other  than  defendant,  should  not  be  re- 
ceived.*^ But  where  the  proof  against  tlie  accused  was  circumstan- 
tial as  to  her  guilty  agency,  it  has  been  held  that  proof  that  another 
person  had  threatened  to  burn  the  house,  and  was  in  the  vicinity  at  the 
time  it  was  burned,  was  held  admissible  in  behalf  of  the  defendant.** 
A  threat  against  a  building  specified  is  not  rendered  inadmissible 
as  evidence  by  a  subsequent  change  in  the  ownership  of  the  build- 
ing.*^ Evidence  of  threats  made  by  the  defendant  against  the  owner 
of  a  building  next  to  the  one  burned  and  which  caught  on  fire,  has 
been  held  admissible.**' 

§  2812.  Evidence  of  previous  attempts. — A  previous  attempt  to 
burn  a  building  may  be  shown  to  establish  intent,  if  accompanied 
by  evidence  of  circumstances  tending  to  implicate  the  defendant  on 
the  former  occasion*'  as  well  as  the  latter.  And  evidence  of  a  previ- 
ous conspiracy  to  burn  the  same  building  is  admissible.*^  And  such 
evidence  is  admissible  where  there  is  testimony  that  the  accused  at 
the  time  of  the  previous  attempt  rode  to  the  place  to  which  he  went 
at  the  time  of  the  fire.*"  An  admission  by  the  accused  that  on  the 
night  of  a  previous  attempt  to  burn  the  same  property,  and  also  on 
the  night  of  the  fire,  he  used  a  team  wdiich  the  evidence  associated 
with  the  perpetrator  of  the  crime,  is  admissible.^''  And  the  fact  that 
the  defendant  in  an  indictment  for  arson,  a  few  months  before  the 

"Hinds  v.  State,  55  Ala.  145.  *«Bond  v.  Commonwealth,  83  Va. 

"*  Commonwealth    v.    Quinn,    150  581,  2  S.  E.  149. 

Mass.  401,  23  N.  E.  54.  "^  State  v.  Hallock,  70  Vt.  159,  40 

-State  V.  Crawford,  99  Mo.  74,  12  Atl.  51;  Commonwealth  v.  Bradford, 

S.  W.  354.  126  Mass.  42;   People  v.  Shainwold, 

^=Ford  V.   State,  112  Ind.  373,  14  51  Cal.  468;   State  v.  Rohfrischt,  12 

N.  E.  241.  La.  Ann.  282. 

"Hensley     v.     State,     9     Humph.  *' Meister  v.  People,  31   Mich.  99. 

(Tenn.)    243.  "State   v.    Ward,    61    Vt.    153,    17 

"  State  v.  Fenlason,  78  Me.  495,  8  Atl.  483. 

Atl.  459;   Commonwealth  v.  Crowe,  =»  State   v.    Ward,    61   Vt.   153,    17 

165  Mass.  139,  42  N.  E.  563.  Atl.  483. 


107  OTHER  OFFENSES.  [§  2813. 

burning  charged,   requested   the   witness  to   burn  the  house,   is   ad- 
missible evidence  against  hira.^^ 

§  2813.  Evidence  of  other  fires  and  crimes. — Evidence  of  other 
fires  has  frequently  been  admitted  as  tending  to  show  the  defendant's 
intent,  or  that  the  defendant  set  fire  to  the  building  named  in  the 
indictment.  Thus,  on  a  trial  for  setting  fire  to  an  outhouse  "used  as 
a  kitchen/'  evidence  that,  at  the  same  hour  also  an  attempt  was  made 
to  set  fire  to  the  dwelling-house,  some  few  yards  oflC,  by  means  of 
fagots  of  wood  tied  up  with  a  rope  belonging  to  defendant,  both 
buildings  having  been  saturated  in  places  with  kerosene,  was  held 
admissible.^-  So  evidence  of  other  fires  is  admissible  if  it  tends  to 
directly  connect  the  defendant  with  the  burning  alleged  in  the  in- 
dictment, to  establish  intent  or  to  show  the  incendiary  origin  of  the 
crime."^  And  evidence  which  shows  that  a  prosecuting  witness  took 
extreme  caution  against  fire  'l^ecause  of  other  fires"  at  specified 
times,  has  been  held  admissible  as  tending  to  prove  an  incendiary 
origin  of  the  fire  in  question.^*  But  evidence  that  certain  other  build- 
ings were  burned  in  the  same  town,  about  the  time  of  the  burning 
of  the  building  alleged  in  the  indictment,  is  not  admissible,  for  such 
evidence  does  not  tend  to  show  either  that  defendant  did  or  did  not 
set  fire  to  the  building  named  in  the  indictment."  x\nd  so  evidence 
as  to  the  burning  of  a  depot  in  a  neighboring  town,  and  as  to  the  pres- 
ence of  a  strange  man  in  the  community  at  the  time  of  the  burning 
is  not  admissible.^*'  Evidence  showing  that  some  years  previously, 
several  buildings,  in  which  defendant  had  some  interest,  and  which 
were  insured,  were  burned,  is  not  relevant  in  a  prosecution  for  set- 
ting fire  to  a  building  with  intent  to  defraud  the  insurers. '"^^  But, 
where,  on  a  trial  for  arson,  it  appears  that  the  fire  was. probably  set 
to  create  an  opportunity  to  commit  a  larceny  it  has  been  held  that 
evidence  of  the  larceny  may  be  admitted  to  prove  the  identity  of  the 
prisoner.^^  So  on  trial  of  an  indictment  for  arson,  evidence  of  a 
subsequent  criminal  act  has  been  admitted  when  connected  in  char- 
acter and  purpose  with  the  offense  charged.^^   And  evidence  that  the 

"  Martin  v.  State,  28  Ala.  71.  ^'  Commonwealth    v.    Gauvin,    143 

"State  V.   Thompson,  97   N.  Car.  Mass.  134,  8  N.  E.  895. 

496,  1  S.  E.  921.  "'State  v.  Dukes,  40  S.  Car.  481. 

=^  Knights   V.    State,   58   Neb.    225,  19  S.  E.  134. 

78  N.  W.  508,  76  Am.  St.  78;   Com-  "State  v.   Raymond,   53   N.   J.   L. 

monwealth  v.   McCarthy.  119  Mass.  260,  21  Atl.  328. 

354.  ''  Jones  v.  State.  63  Ga.  395. 

"State  V.  McMahon,  17  Nev.  365,  '=*  Kramer    v.    Commonwealth.    87 

30  Pac.  1000.  Pa.  St.  299. 


§  2814.]  ARSON.  lOS 

defendant  obtained  powder  to  set  fire  by  breaking  into  a  certain' 
powder  store  is  competent.'^"  In  order  to  show  that  a  burning  was 
intentional,  evidence  of  the  burning  of  other  property  belonging  to 
the  accused  is  admissible.  For  example,  it  has  been  held  that  when 
it  is  charged  that  the  accused  has  set  his  own  house  on  fire,  it  may 
be  shown  that  at  some  previous  time  the  same  or  other  buildings  be- 
longing to  him  had  been  burned,  or  that  he  had  endeavored  to  in- 
duce some  one  to  set  fire  to  his  buildings.^^  And  evidence  tending  tO' 
show  that  defendant  started  former  fires  on  the  property  which  he  is 
charged  with  burning  is  competent  to  prove  intent.®- 

§  2814.     Evidence  of  certain  facts  concerning  the  property  burned.. 

As  a  general  rule  evidence  of  the  ownership,  occupancy  and  con- 
tents of  the  building  burned  is  admissible  in  a  proper  case.®^  And 
the  occupancy,  control  and  possession  of  property  destroyed  by  fire 
may  be  shown  by  parol  evidence.®*  So,  parol  evidence  is  generally 
admissible  to  prove  the  ownership  of  the  property.®^  And  where  it 
was  shown  that  the  defendant  occupied  the  premises  burned,  under  a. 
lease,  parol  testimony  of  the  ownership  was  held  admissible.®®  It  has 
also  been  decided  that  when  ownership  is  relevant,  it  may  be  proved 
by  a  certified  copy  of  a  record  with  oral  evidence  that  the  accused 
had  made  an  oral  lease,  or  had  signed  as  owner.®^  Evidence  that 
the  husband  furnished  part  of  the  money  to  build  a  house  originally, 
which  house  now  belongs  to  his  wife  and  which  he  is  charged  with 
burning,  is  not  admissible,  however,  since  such  evidence  would  not 
change  the  ownership.®^  So,  it  has  been  held  that  testimony  as  to 
the  ownership  is  not  relevant  if  there  is  no  question  raised  as  to 
ownership  aside  from  the  statement  in  the  indictment  as  to  the  occvi- 
pation  and  possession  at  the  time  of  the  fire.®^  Where  the  contents- 
or  occupancy  of  a  dwelling  become  important  and  essential  it  may 
be  shown  that  adjoining  buildings  were  occupied  in  like  manner, 
especially   where   all   the   buildings    constitute   but   one   dwelling.'" 

•»  State  v.  Roberts,  15  Ore.  187,  13  "  State  v.  Jaynes,  78  N.  Car.  504. 

Pac.  896.  "« Rogers    v.    State,    26    Tex.   App. 

"People    V.    Fournier,     (Cal.)     47  404,  9  S.  W.  762. 

Pac.  1014;   Commonwealth  v.  Brad-  ""Commonwealth    v.    Preece,    140 

ford,  126  Mass.  42;   Meister  v.  Pec-  Mass.  276,  5  N.  E.  494. 

pie,  31  Mich.  99.  «« Garrett   v.    State.   109    Ind.    527. 

"-  People  V.  Lattimore,  86  Cal.  403,  10  N.  E.  570. 

24  Pac.  1091.  "'  People  v.  Scott,  32  Cal.  200. 

"'State  V.  Elder,  21  La.  Ann.  157;  ""People  v.   Cassidy,   60   Hun    (N.. 

Hamilton  v.  People,  29  Mich.  173.  Y.)  579,  14  N.  Y.  S.  349. 

"  State  v.  Elder,  21  La.  Ann.  157. 


109  ADMISSIONS    AND    COXFESSIOXS,  [§    2815. 

And  in  an  indictment  for  burning  a  building  with  intent  to  injure 
an  insurance  company,  testimony  that  the  building  had  been  occupied 
as  a  summer  hotel  during  the  preceding  summer  was  held  com- 
petent as  a  description  of  the  building.^ ^  But  it  has  been  held  error 
to  admit  evidence  of  the  contents  of  a  barn  where  it  is  not  disputed 
that  the  barn  was  a  building.'-  Evidence  is  competent  to  show  that 
a  building  was  called  a  barn  though  it  was  used  for  a  purpose  other 
tlian  thatJ^  And  where  there  is  an  indictment  for  burning  a  cer- 
tain building,  although  evidence  of  what  was  in  it  at  the  time  it  was 
burned  is  not  otherwise  competent,  yet  what  was  kept  in  it  from 
time  to  time  is  relevant  and  competent  to  show  that  the  building 
was  such  a  one  as  described  in  the  indictment. '^^  A  map  of  tlie  build- 
ing set  on  fire  and  of  the  adjacent  and  surrounding  premises  is 
competent  for  the  purpose  of  describing  the  scene  of  the  crime.'^^ 
If  the  accused  is  charged  with  setting  fire  to  the  house  of  another, 
evidence  to  show  his  familiarity  with  the  .premises  may  be  admis- 
sible.'^^ 

§  2815.  Admissions  and  confessions. — Admissions  and  confessions 
of  the  accused  are  admissible  in  a  proper  case.  Thus,  a  declara- 
tion made  by  the  accused  or  made  in  his  presence  and  adopted  by  him, 
contemporaneous  with  and  explanatory  of  the  main  transaction,  is 
admissible."^  But  a  statement  made  some  time  after  his  barn  was 
burned,  that  defendant  had  good  insurance  on  his  house,  and  it 
might  go  to  blazes  with  the  barn,  has  been  held  not  to  be  admis- 
sible to  show  that  he  burned  tlie  barn.'^®  When  the  burning  of  the 
house  is  established  by  other  evidence,  the  confessions  of  the  de- 
fendant are  admissible  to  show  that  the  burning  was  felonious,  and 
that  he  was  the  criminal  agent.'^'^  Thus,  it  may  be  shown  that  the 
defendant,  on  his  preliminary  examination,  gave  an  account  of  his 
whereabouts  on  the  night  of  the  fire  that  was  inconsistent  with  his 
former  statements.^"     So,  an  admission  by  accused  voluntarily  made, 

■'Commonwealth    v.    Wesley,    1G6  "People   v.   Eaton,   59   Mich.   559, 

Mass.  248,  44  N.  E.  228.  26  N.  W.  702;  State  v.  Ward,  61  Vt. 

"Simpson  v.  State,  111  Ala.  6,  20  153,  17  Atl.  483;   Commonwealth  v. 

So.  572.  Wesley,  166  Mass.  248.  44  N.  E.  228. 

"  State  V.  Smith,  28  Iowa  565.  "  Hamilton    v.    People,    29    Mich. 

'*  Brown  v.  State,  52  Ala.  345.  173. 

'» People  V.  Cassidy,  133  N.  Y.  612,  ■»  Sam  v.  State,  33  Miss.  347. 

30  N.  E.   1003.  '"People   v.   Eaton,   59    Mich.    559, 

"""  People  V.  Murphy,  135  N.  Y.  450,  26  N.  W.  702. 
32  N.  E.  138. 


§    2816.]  ARSON.  110 

to  an  officer  and  in  a  letter  written  to  a  third  party,  after  his  arraign- 
ment, that  he  was  near  the  farm  on  which  the  burned  property  was 
located,  is  admissible. '^^ 

§  2816.  Evidence  in  general.— It  may  be  stated  in  general  that  the 
same  rules  of  evidence  obtain  in  trials  for  arson  as  in  other  criminal 
actions.  Thus  real  evidence  may  be  submitted  to  the  jurors,  for  ex- 
ample, a  board  torn  from  the  building  may  be  exhibited  to  the  Jury.*^ 
And  the  jury  may  be  sent  out  to  view  the  building  burned. ^^  So  the 
location  and  occupation  of  buildings  near  that  which  was  burned  may 
be  shown  by  maps,  photographs  or  otherwise,  to  enable  the  jury  to 
understand  the  evidence  more  clearly.''*  But  the  court  is  not  obliged 
to  stop  proceedings  in  order  to  try  an  experiment  in  open  court  as  to 
the  length  of  time  it  would  take  a  candle  to  burn  down  to  the  point  of 
those  discovered  in  the  burned  building  after  the  fire.**^  Yet  it  is 
within  the  discretion  of  the  trial  court  to  admit  evidence  of  such  ex- 
periments.^® The  identity  of  one  charged  with  arson  may  be  shown  by 
evidence  of  recognition  of  his  voice,  though  the  witness  did  not  see 
him.^^  Evidence  showing  the  conduct  of  the  accused  is  often  ad- 
missible. Thus,  evidence  that  the  accused  abused  and  threatened  the 
owner  both  before  and  after  the  burning  and  after  the  fire  stated  to 
him,  'S'ou  have  not  yet  got  what  I  intend  to  give  you,"  was  held  ad- 
missible.®® So,  evidence  of  the  movements  of  defendants  during  the 
night  and  just  preceding  the  fire  is  admissible.®^  And  where  there 
was  evidence  that  the  defendant  was  seen  to  approach  the  building 
with  a  jug  in  her  hand,  and  pour  oil  from  it  and  set  it  afire,  evi- 
dence that  the  jug  was  formerly  in  possession  of  her  husband  was 
held  admissible  as  evidence  of  the  prisoner's  identity.^"  And  so, 
where  the  evidence  tended  to  show  that  the  one  who  set  the  fire  had 
with  him  a  sleigh  which  made  certain  peculiar  tracks,  evidence  that 
a  sleigh  which  the  accused  had  on  tlie  night  of  the  fire  fitted  into  the 
tracks  is  admissible  where  other  evidence  tended  to  connect  the 
accused  witli   the   arson,   such   evidence  being  held   admissible   even 

"People  v.    Eaton,   59  Mich.   559,         «« People  v.  Levine,  85  Cal.  39,  22 

26  N.  W.  702.  Pac.  969. 

^-Commonwealth     v.  Betton,      5         *^  Davis  v.  State,  15  Tex.  App.  594. 

Cush.   (Mass.)    427.  ^  ShilTiet     v.     Commonwealth,     14 

«^  Fleming  v.  State,  11  Ind.  234.         Gratt.    (Va.)   652. 

^People  v.  Cassidy,  133  N.  Y.  612,         '"  People   v.    Burton,   77   Hun    (N. 

30  N.  E.  1003.  Y.)   498,  28  N.  Y.  S.  1081. 

»» People  v.  Levine,  85  Cal.  39,  22         '» Thomas  v.  State,  107  Ala.  13,  1& 

Pac.  969.  So.  229. 


Ill  EVIDENCE    IX    GEXERAL.  [§    2816. 

though  there  is  no  evidence  that  the  defendant  was  actually  seen 
with  the  sleigh  i;pon  the  road."^  But  on  the  trial  of  an  indictment 
for  burning  a  stable,  evidence  that  the  measurement  of  certain  tracks 
leading  from  the  stable  towards  defendant's  house  had  been  ap- 
plied to  the  foot  of  the  brother  of  the  defendant,  who  had  been  at 
first  arrested  for  the  offense,  and  that  the  measurement  did  not  cor- 
respond, is  not  admissible.^^  Where  it  appeared  that  a  fire  started 
in  a  shed  in  which  was  kept  a  gasoline  stove,  evidence  that  the 
stove  leaked,  and  had  once  caught  on  fire,  was  held  admissible  as 
tending  to  account  for  the  fire  which  the  defendant  was  charged 
with  setting,  at  least  where  the  evidence  against  him  was  entirely 
circumstantial.^^  As  already  intimated,  evidence  tending  to  show 
that  the  defendant  made  preparations  to  commit  the  crime  is  admis- 
sible. So,  it  may  be  proved  where  and  how  he  procured  gunpowder 
with  which  the  fire  was  started,  even  where  this  involves  proving  an- 
other crime  and  that  he  was  seen  in  the  building  after  business  hours- 
or  observed  skulking  near  by.^*  And  it  may  be  shown  that  the  ac- 
cused, when  arrested,  soon  after  the  fire,  had  poisoned  meat  in  his 
possession,  prepared  in  a  peculiar  manner,  where  a  dog  belonging  to 
the  owner  of  the  burned  property  was  poisoned  on  the  night  of  the 
fire,  and  a  postmortem  examination  showed  poisoned  meat  in  the 
animal's  stomach  similarly  prepared.''^'  Evidence  is  admissible  that 
goods  which  were  in  the  house  ^^■]lcn  it  was  burned  were  subsequently 
found  in  a  trunk  in  the  possession  of  the  accused."'^  And  evidence 
of  an  odor  of  kerosene  on  defendant's  clothing  at  the  time  of  the 
fire  is  admissible  in  a  prosecution  against  him  for  burning  his  prop- 
erty to  defraud  insurers,  tliere  being  evidence  that  kerosene  was  used 
to  burn  the  building.^'  And  so  evidence  that  the  accused  forbade  the 
removal  of  property  from  tlie  house  of  which  he  was  the  owner  wlnle 
it  was  burning  is  admissible  as  tending  to  prove  that  he  started  the 
fire.***  x\nd  the  mutilation  of  books  by  or  at  the  instance  of  the  de- 
fendant is  pertinent  to  the  issue  if  it  will  show  tlie  interest  of  the 
defendant  in  the  insured  property  which  he  is  charged  with  burn- 

•^  State   V.    Ward.    61    Vt.    153,    17  "  Halleck  v.  State.  65  Wis.  147,  26 

Atl.  483.  N.  W.  572. 

»=  State  V.  England,  78  N.  Car.  552.  »«  State  v.  Vatter,  71  Iowa  557,  32 

*«  State  V.   Delaney,   92    Iowa  467,  N.  W.  506. 

61  N.  W.  189.  »' People  v.   Bishop,   134   Cal.   682, 

'^  State  V.  Roberts,  15  Ore.  187,  13  66  Pac.  976. 

Pac.  896;   State  v.  Crawford,  99  Mo.  *»  Bluman    v.    State,    33    Tex.    Cr. 

74,  12  S.  W.  354.  App.  43,  21  S.  AV.  1027. 


§  2816.]  ARSON.  112 

ing.^®  It  lias  been  held  that  in  the  absence  of  evidence  that  the 
accused,  charged  with  arson,  was  of  uncommon  height  or  figure,  it 
was  error  to  admit  as  affirmative  evidence  of  identification  that 
witnesses  met  a  man  in  a  public  highway,  in  the  evening,  shortly 
after  the  fire,  and  from  one  to  two  miles  from  the  building  burned, 
of  about  the  same  size  and  height  of  accused.^""  A  witness  should 
not  be  permitted  to  testify  that-  "he  thought  the  house  was  set  on  fire 
by  some  one."^"^  It  has  been  held  that  a  question  put  to  the  prose- 
cuting witness,  "What  was  the  state  of  feeling  between  you  and  the 
accused  at  the  time  of  the  burning?"  is  not  leading.^"^  And  where 
a  witness  testified  that  he  saw  the  three  persons  charged  with  arson 
together  soon  after  the  fire,  he  should  be  allowed  to  be  cross-ex- 
amined as  to  whether  this  impressed  him  at  the  time  and  when  he 
first  mentioned  it.^"^  Among  the  many  miscellaneous  matters  which 
have  been  admitted  as  evidence  are  the  following:  Evidence  of  the 
relation  existing  between  the  accused  and  the  person  whose  property 
was  burned  is  admissible  in  identifying  him  as  the  wrongdoer  ;^°* 
where  an  indictment  charges  the  burning  of  a  number  of  houses 
which  were  destroyed  by  one  fire,  evidence  is  admissible  as  to  the 
burning  of  all  of  them;^"^  but  where  two  persons  are  indicted  sep- 
arately for  the  same  offense,  the  record  of  the  conviction  of  one  has 
been  held  not  to  be  admissible  as  evidence  against  the  other  ;^*'°  the 
opinions  of  fire  insurance  experts,  based  on  an  examination  of  the 
debris,  are  admissible  as  to  the  quantity  of  goods  which  have  been 
burned  ;^'''^  and  facts  tending  to  corroborate  the  testimony  of  an 
accomplice,  although  not  otherwise  directly  bearing  on  the  main 
fact  tried,  may  be  admissible.^"®  It  has  been  held  that  in  a  prosecu- 
tion for  burning  a  building  with  intent  to  defraud  an  insurance 
company,  it  is  not  necessary  to  prove  the  legal  existence  of  the  com- 
pany.^''" 

''People  V.  O'Neill,  112  N.  Y.  355,  »» Woodford   v.   People,   62   N.   Y. 

19  N.  E.  796.  117,  20  Am.  R.  464. 

^"o  People    V.    Gotshall,    123    Mich.  ^°«  Kazer  v.  State,  5  Ohio  280. 

474,  82  N.  W.  274.  i°' Birmingham    Fire    Ins.    Co.    v. 

'"'■  State  V.  Nolan,  48  Kans.  723,  30  Pulver,  126  111.  329,  18  N.  E.  804. 

Pac.  486.  "»Hall   v.    State,   3    Lea    (Tenn.) 

^"^  Hinds  V.  State,  55  Ala.  145.  552. 

'"^Hamilton    v.    People,    29    Mich.  '"'State  v.   Byrne,    45    Conn.   273; 

173.  Evans  v.  State,  24  Ohio  St.  458. 

"^  Long  V.  State,  86  Ala.  36,  5  So. 
443. 


CHAPTER  CXXXIII. 


ASSAULT  AND  ASSAULT  AND  BATTERY. 


Assault. 
Sec. 

2817.  Definition. 

2818.  Proof  of  intent. 

2819.  Intent  inferred  from  act. 

2820.  Intent  not  always  necessary. 

2821.  Intent — When  proof  need  not 

show. 

2822.  With  present  ability. 

2823.  Present  ability — Meaning. 

2824.  Attempt  or  offer  to  strike. 

2825.  Assault  by  striking  at — Vari- 

ance. 

2826.  With    present    ability — Strik- 

ing distance. 

2827.  Assault  and  menace. 

2828.  Violence  intended. 

2829.  Drawing  firearms. 

2830.  Pointing  firearms  necessary. 

2831.  Drawing    unloaded    gun — Not 

an  assault. 

2832.  Drawing    unloaded     gun — An 

assault. 

2833.  Unloaded    gun — Civil    and 

criminal  assault. 

2834.  Drawing     gun — B  u  r  d  e  n     of 

proof  as  to  being  loaded. 

Assault  and  battery. 

2835.  Definition. 

2836.  Rule  stated  by  Mr.  Greenleaf. 


Sec. 

2837.  Direct  striking  not  necessary. 

2838.  Intent. 

2839.  Intent    not    essential    to    tho 

crime. 

2840.  Intent — Presumption. 

2841.  Intent — Inferred  from  circum- 

stances. 

2842.  Injury  to  feelings. 

2843.  Parent — Assault    and    battery 

on  child. 

2844.  Teacher — Assault  and  battery 

on  pupil. 

2845.  Assault  and  battery  by  parent 

— Presumption   and    burden 
of  proof. 

2846.  Excessive    punishment — What 

constitutes. 

2847.  Self-defense. 

2848.  Self-defense — Excessive   force. 

2849.  Self-defense — Duty    of    assail- 

ant. 

2850.  Defense  of  family. 

2851.  Defense  of  possession. 

2852.  Defense  of  property. 

2853.  Degree  of  force. 

2854.  Degree  of  force — Distinction. 

2855.  Self-defense — Burden  of  proof. 

2856.  Retaking   property — No   justi- 

fication. 

2857.  Retaking   p  r  o  p  e  r  t  y — When 

justifiable. 


Assault. 

§  2817.  Definition. — It  would  seem  necessary  to  have  a  clear 
understanding  of  the  definition  and  meaning  of  the  term  assault  in 
order  the  more  readily  to  comprehend  and  apply  the  rules  of  evi- 
dence which  govern  in  cases  of  cruninal  assault.  A  standard  law- 
writer  defines  the  term  thus:  "An  attempt,  or  the  unequivocal  ap- 
VoL.  4  Elliott  Ev. — 8  113 


§    2817.]  ASSAULT.  114 

pearance  of  an  attempt,  with  force  or  violence  to  do  a  corporal  in- 
jury, and  may  consist  of  any  act  which  shall  convey  to  the  mind  of 
the  person  set  upon,  a  well-grounded  apprehension  of  personal 
violence."^  Another  definition  given  by  a  law  writer  and  approved 
by  some  courts  is :  "An  assault  is  any  attempt  or  offer  with  force  or 
violence  to  do  a  corporal  hurt  to  another,  whether  from  malice  or 
wantonness,  as  by  striking  at  him  in  a  threatening  or  insulting  man- 
ner, or  with  such  other  circumstances  as  denote  at  the  time  an  inten- 
tion, coupled  with  a  present  ability,  of  actual  violence  against  his  per- 
son, as  by  pointing  a  weapon  at  him  when  he  is  within  reach  of  it."- 
The  Texas  Court  of  Appeals  has  defined  it  as  follows :  "To  constitute 
an  assault  there  must  be  the  use  of  some  unlawful  violence  upon  the 
person  of  another,  with  intent  to  injure  him  or  her,  or  some  threat- 
ening gesture  showing  itself  or  by  words  accompanying  it,  an  im- 
mediate intention  to  commit  a  battery."^  Or  as  stated  by  the  same 
court  in  another  case :  "In  every  assault  there  must  be  an  intention 
to  injure  coupled  with  an  act  which  must  at  least  be  the  beginning 
of  the  attempt  to  injure  then,  and  not  an  act  of  preparation  for  some 
contemplated  injury  that  may  afterwards  be  inflicted."*  So  it  has 
been  defined  to  be  an  "unlawful  setting  upon  one's  person;"  and  it 
has  been  held  that  the  assault  might  consist  of  indignities  heaped 
upon  another.^  As  stated  in  an  early  ISTew  York  case,  "an  assault  is. 
defined  by  these,  to  be  an  attempt  with  force  or  violence  to  do  a 
corporal  injury  to  another;  and  may  consist  of  any  act  tending  to 
such  corporal  injury,  accompanied  with  such  circumstances  as  denote 
at  the  time  an  intention,  coupled  with  the  present  ability,  of  using 
actual  violence  against  the  person.  There  need  not  be  even  a  direct 
attempt  at  violence;  but  any  indirect  preparation  towards  it,  and 
under  the   circumstances   mentioned,   such    as   drawing   a   sword    or- 

^2  Archibold  Cr.  Proc,  PI.  &  Ev.  =  Hardy     v.     Commonwealth,     17 

41;    Pratt    v.    State,    49    Ark.    179;  Gratt.   (Va.)    592. 

Kline  v.  Kline,  158  Ind.  602,  64  N.  ^Carroll    v.    State,    24    Tex.    App. 

E.  9;  List  v.  Miner,  74  Conn.  50,  49  366,  6  S.  W.  42;   Jones  v.  State,  18 

Atl.   856;    Johnson  v.  State,  14   Ga.  Tex.  App.  485. 

55;    Goodrum  v.  State,  60  Ga.  509;  *  Johnson   v.    State,    43    Tex.    576: 

State    v.    Harrigan,    (Del.)    55    Atl.  Higginbotham  v.  State,  23  Tex.  574; 

5;    Stivers  v.  Baker,  87  Ky.   508,  9  Young  v.  State,  7  Tex.  App.  75. 

S.  W.  491;   Perkins  v.  Stein,  94  Ky.  "  Geraty  v.  Stern,  30  Hun  (N.  Y.) 

433,  22  S.  W.  649;   People  v.  Lilley,  426;    People  v.  Moore,  50  Hun    (N^ 

43  Mich.  521,  5  N.  W.  982;  Bishop  v.  Y.)   356,  3  N.  Y.  S.  159. 
Ranney,  59  Vt.  316.  7  Atl.  820. 


115  INTENT.  [§§  2818,  2819. 

bayonet,  or  even  laying  one's  hand  upon  his  sword,  would  be  suf- 
ficient."" 

§  2818.  Proof  of  intent. — In  establishing  the  charge  of  an  assault 
as  held  in  many  cases  the  proof  must  sufliiciently  show  a  present  in- 
tention to  execute  the  threat  or  to  complete  the  attempt.  The  inten- 
tion to  commit  the  act  is  the  very  essence  of  tlie  olfoisc  and  must  of 
necessity  be  shown.  So,  the  intention  must  ])e  to  commit  a  present 
and  not  a  future  injury.  But  such  intention  may  l)e  inferred  or  it 
ma}'  be  proved  by  the  circumstances  or  by  tlie  acts  and  declarations 
of  the  accused."  While  the  offer  or  attempt  to  commit  the  assault 
must  be  intentional;  and  while  this  intent  may  Ijc  inferred  from  ap- 
pearances and  circumstances  or  the  acts  and  conduct  of  the  assailant, 
yet  if  notwithstanding  such  appearances  it  is  evident  that  there  is 
no  intention  or  present  purpose  to  do  the  injury,  there  can  be  no 
assault.*  It  has  been  held  that  the  drawing  of  a  weapon  is  generally 
evidence  of  an  intention  to  use  it.  But  such  an  intention  may  be  re- 
butted by  the  declarations  or  circumstances  which  accompany  the  act, 
showing  that  there  was  in  fact  no  intention  to  use  the  weanon.^ 

§  2819.  Intent  inferred  from  act. — There  is  a  class  of  cases  in 
which  it  is  very  clearly  and  positively  held  that  the  intent  to  commit 
an  assault  may  be  inferred  from  the  act  itself.  And  the  rule  has  been 
extended  to  the  point  of  holding  that  the  positive  declaration  of  the  ac- 
cused to  the  effect  that  he  did  not  intend  to  commit  any  violence  or  in- 
jury, or  that  he  only  intended  to  frighten  the  .person  alleged  to  have 
been  assaulted,  will  not  be  sufficient  to  overcome  the  inference  of  in- 
tention from  the  act  itself.  Illustrations  of  this  rule  are  found  in  a 
class  of  cases  in  which  it  is  held  that  where  a  person  fires  a  loaded  gun 
or  pistol  at  or  in  the  direction  of  another,  but  without  striking  ]iim, 

"Hays  V.   People,  1   Hill    (N.   Y.)  Putney,  80  Wis.  523,  527,  50  N.  W. 

351;  People  v.  Ryan,  55  Hun  (N.  Y.)  403;    Degenhardt  v.  Heller,  93  Wis. 

214,  8  N.  Y.  S.  241;    People  v.   Mc-  663,  68  N.  W.  411;  2  Greenleaf  Ev., 

Kenzie,    6    App.    Div.    (N.    Y.)    199,  §  83. 

39  N.  Y.  S.  951.  *^  Smith    v.    State.    39    Miss.    521; 

^Perkins  v.  Stein,  94  Ky.  433,  22  State  v.  Davis,  1  Ired.  L.   (N.  Car.) 

S.  W.  649;    Commonwealth  v.  Ord-  125;    2  Wharton  Cr.  Law,  §§  1241- 

way,  12  Cush.   (Mass.)  270;   Cluff  v.  1244. 

Mutual     &c.     Ins.     Co.,     13     Allen  ^People  v.  McMakin,  8  Cal.   547; 

(Mass.)    308;    State   v.    Godfrey,    17  People  v.  Hon.shell,  10  Cal.  S3. 
Ore.    300,    20   Pac.    625;    Vosburg  v. 


§§  2820,  2821.]  ASSAULT.  IIG 

it  is  an  assault,  and  the  person  thus  shooting  the  weapon  will  not  be 
heard  to  say  that  he  did  not  intend  to  hit  his  assailant,  that  his 
purpose  was  to  frighten  him  only.  One  case  states  the  rule  as  fol- 
lows: "The  act  of  firing  the  pistol  at  the  complainant,  or  in  the 
direction  where  he  was  standing,  with  the  intent  to  frighten  him, 
was  not  only  wholly  inexcusable,  but  unlawful  and  reckless  as  well. 
It  was  an  act  which  was  well  calculated  to  inflict  serious  personal 
injury;  and  from  such  an  act  the  law  implies  malice.  *  *  *  j^ 
logically  as  well  as  necessarih'  follows,  therefore,  that  the  offense  com- 
mitted was  that  of  an  assault  with  a  dangerous  weapon."^" 

§  2820.  Intent  not  always  necessary. — Tliere  are  some  cases  and 
law  writers  that  maintain  with  much  show  of  reason  that  the  ele- 
ment of  intent  is  not  necessarily  essential  to  the  crime  of  assault. 
According  to  these  authorities  there  are  other  elements  that  may  take 
the  place  of  intent.  They  recognize  that  the  offense  may  be  com- 
mitted Avith  malice  or  wantonness,  or  that  it  may  consist  in  putting 
another  person  in  fear  of  violence.  As  stated  by  one  court :  "An  as- 
sault, as  ordinarily  defined,  is  any  unlawful  attempt  or  offer,  with 
force  or  violence,  to  do  a  corporal  hurt  to  another,  whether  from 
malice  or  wantonness.  The  offense  may  consist,  also,  in  putting  an- 
other in  fear  of  violence."^^  The  definition  given  by  Mr.  Bishop  is 
that  "an  assault  is  any  unlawful  physical  force,  partly  or  fully  put 
in  motion,  creating  a  reasonable  apprehension  of  immediate  physical 
injury  to  a  human  being."^' 

§  2821.  Intent — When  proof  need  not  show. — It  is  the  rule  as 
established   by   writers   and   cases   that    in   seeking   to   establish   the 

'"State  V.  Baker,  20  R.  I.  275,  38  152;  Justice  v.  Phillips,  7  Ky.  L.  R. 

Atl.   653;    Morgan  v.   State,  33   Ala.  439;    Commonwealth  v.   White,   110 

413;  State  v.  Shepard,  10  Iowa  126:  Mass.  407;  State  v.  Cherry,  11  Ired. 

Meader  v.    Stone,    7    Mete.    (Mass.)  L.     (N.    Car.)     475;     Atterberry    v. 

147;     Usher    v.    Commonwealth,     2  State,    33    Tex.    App.    88;    State    v. 

Duv.  (Ky.)  394;  Cornelison  v.  Com-  Shipman,   81  N.  Car.   513;    State  v. 

monwealth,  84  Ky.  583,  2  S.  W.  235;  Sims,  3  Strob.   (S.  Car.)   137;   State 

State   V.   Aleck,    41   La.    Ann.    83,    5  v.  Benedict,  11  Vt.  236;   Reg.  v.  St. 

So.  639;  Commonwealth  v.  Ruggles,  George,    9    Car.    &   P.    483;    Reg.    v. 

6  Allen    (Mass.)    588;    State  v.  Gor-  James,   1   Car.  &  Kir.   530;    Reg.  v. 

ham,  55   N.  H.   152,  168;    People  v.  Oxford,  9   Car.   &  P.   525;    Blake  v. 

McMakin,  8  Cal.  547;  1  Wharton  Cr.  Barnard,  9  Car.  &  P.  626. 
Law,  §  609.  '=  2  Bishop  Cr.  Law,  §  23 ;  Rapalje 

"  State  v.  Baker,  20  R.  I.  275,  38  &  Lawr.,  Law  Diet.— Assault. 
Atl.  653;  State  v.  Gorham,  55  N.  H. 


117  INTENT — PRESENT    ABILITY,  [§    2822. 

charge  of  an  assault  it  is  not  always  necessary  to  prove  that  the  accused 
actually  intended  to  strike ;  it  is  sufficient  to  show  that  the  attitude  or 
gestures  give  reasonable  ground  to  believe  that  the  force  will  be  ap- 
plied or  the  attempt  consummated.^^  A  recent  writer  on  criminal 
law  states  this  rule  as  follows:  "Indeed,  the  general  proposition 
supported  by  the  weight  of  authority  is  that,  if  assailant  makes 
threats  to  injure,  being  in  apparent  position  to  carry  them  out,  and 
does  acts  with  the  apparent  intention  of  carrying  them  out,  thus 
putting  the  assailed  in  fear,  an  assault  is  committed,  even  though  by 
reason  of  facts  not  known  to  the  person  assailed  it  would  be  impos- 
sible for  assailant  to  commit  the  injury  threatened.  Thus,  to  point 
a  gun  or  pistol  at  a  person  who  does  not  know  but  that  it  is  loaded, 
and  has  no  reason  to  believe  that  it  is  not,  is  an  assault.  It  is  there- 
fore unnecessary,  in  such  cases,  that  the  indictment  allege  that  the 
weapon  was  loaded,  or  otherwise  show  present  ability  to  inflict  an 
injury;  but  on  this  point  authorities  to  the  contrary  are  cited  in  the 
preceding  section."^*  So  another  court  said  :  "The  three  defendants, 
accompanied  by  another,  one  with  a  pistol  in  his  right  hand,  one  with 
a  drawn  sword,  and  one  with  a  pistol  in  his  pocket,  went  to  the 
door  of  the  prosecutor's  house,  where  he  was  sitting.  All  that  is 
needed  to  make  such  an  approach  to  a  man  an  assault,  that  it  is  the 
beginning  of  the  execution  of  violence  to  his  person,  is  to  prove  that 
there  was  a  present  purpose  to  commit  such  violence.  That  purpose 
may  be  proved  by  the  words,  or  gestures  of  the  armed  and  advancing 
party;  or,  if  the  approach  or  attack  is  made  in  such  a  manner  as  to 
put  a  reasonable  man  in  fear,  and  it  does  put  him  in  fear,  tliat 
will  establish  the  purpose  to  commit  violence,  of  the  execution  of 
which  the  act  is  the  beginning."^^ 

§  2822.  With  present  ability. — The  cases  all  agree  that  as  a  mat- 
ter either  of  pleading  or  proof  it  must  be  stated  or  shown  tliat  tlie 
accused  had  the  present  ability  to  commit  tlie  violent  injury  as 
alleged.^®    One  of  the  justices  of  the  Supreme  Court  of  Oregon,  after 

"Morgan   v.   O'Daniel,   21   Ky.   T..  State  v.  Hubbs,  58  Ind.  415;  Howard 

R.  1044,  53  S.  W.  1040.  v.    State.    67    Ind.    401;     Hendle    v. 

»1  McClain  Cr.  Law  233.  Geiler,  (Del.)  50  Atl.  632;  Chandler 

"State  v.  Lee,  113  N.  Car.  681,  18  v.  State.  141  Ind.  106,  39  N.  E.  444; 

S.  E.  713.  Woodworth   v.   State.   145    Ind.   276. 

"State     V.     Lockwood,     1     Pen.  43  N.   E.  933;    State  v.   Sullivan,  5 

(Del.)  76,  39  Atl.  589;  State  v.  Bur-  Mont.    490,    24    Pac.    23;    People   v. 

ton,  2  Pen.   (Del.)   472,  47  Atl.  619:  Ryan,  28  N.  Y.  St.  489.  27  N.  Y.  St. 


§   2823.]  ASSAULT.  118 

reviewing  and  citing  many  authorities,  clearly  showed  that  "to  con- 
stitute an  assault  there  must  be  an  intentional  attempt  to  do  injury 
to  the  person  of  another  by  violence,  and  that  such  attempt  must 
be  coupled  with  a  present  ability  to  do  the  injury  attempted.  It  is 
equally  manifested  that  the  element  of  fear  or  apprehension  on  the 
part  of  the  person  against  whom  the  attempt  is  made  cannot  be 
controlling  or  in  any  way  influence  the  conclusion,  for  the  reason  that 
?uch  person  may  be  assaulted  and  be  wholly  unconscious  of  the  in- 
jury."'" A  writer  on  the  law  of  torts  upon  an  English  authority 
recognizing  the  necessity  of  the  element  of  contact  as  an  essential 
ingredient  of  the  offense  says  that  "any  gesture  or  threat  of  violence 
exhibiting  an  intention  to  assault,  with  the  means  of  carrying  that 
tlircat  into  effect,  is  an  assault,  unless  immediate  contact  is  impos- 
sible."'^ Eecognizing  the  necessity  of  a  present  ability  to  execute  the 
threat  or  carry  out  the  intention  the  Supreme  Court  of  Vermont  de- 
fines the  offense  as  follows:  "If  the  party  threatening  the  assault 
had  the  ability,  means  and  apparent  intention  to  carry  his  threat 
into  execution  it  may,  in  law,  constitute  an  assault,'"** 

§  2823.  Present  ability — Meaning.— It  is  not  necessary,  however, 
that  the  proof  shall  show  that  the  assailant  was  in  actual  striking  dis- 
tance or  near  enough  to  have  touched  or  struck  the  party  assailed. 
If  there  is  an  unequivocal  purpose  of  violence  which  is  accompanied 
by  any  act  by  which  if  continued  the  violence  or  injury  will  be  in- 
flicted, it  is  sufficient.  Familiar  illustrations  of  this  principle  are 
found  in  the  cases  holding  that  advancing  or  running  toward  another, 
attempting  to  strike  though  intercepted  before  reaching  striking  dis- 
tance, is  sufficient.-"     So,  proof  of  riding  after  another  with  the 

916,   8   N.   Y.   S.   241,   369;    State  v.  169,  62  N.  E.  702;    Hays  v.  People, 

Davis,    1    Ired.    L.    (N.    Car.)    125;  1  Hill   (N.  Y.)   351;  Klein  v.  State. 

Bloomer  v.  State,  3  Sneed    (Tenn.)  9  Ind.  App.  365,  36  N.  E.  763. 
66;    Berkeley  v.  Commonwealth,   88         "State  v.  Godfrey,  17  Ore.  300.  20 

Va.  1017,  14  S.  E.  916;   State  v.  Le-  Pac.  625;   People  v.  Lilley,  43  Mich, 

van,    23    Wash.    547,    63    Pac.    202;  521,  5  N.  W.  982;  Chapman  v.  State, 

Bryant  v.  State,  7  Wyo.  311,  51  Pac.  78  Ala.  463. 

879,   56  Pac.   596;    United    States  v.         "Bishop  v.  Ranney,  59  Vt.  316,  7 

Barnaby,  51  Fed.  20;  State  v.  Mills,  Atl.   820;    Read  v.   Coker,   13   C.   B. 

3  Pen.  (Del.)  508,  52  Atl.  266;  State  850;   Cobbett  v.  Grey,  4  Exch.  744. 
v.  Di  Guglielmo,  (Del.)  55  Atl.  350;         "Clark  v.  Downing,  55  Vt.  259. 
Donnelley  v.   Territory,    (Ariz.)    52         =»  State   v.    Davis,   1    Ired.   L.    (N. 

Pac.    368;    State   v.    Cody,   94   Iowa  Car.)     125;     Berkeley    v.    Common- 


119  ATTEMPT  TO  STRIKE.        [§§  2824,  2825. 

-avowed  purpose  of  beating  him,  although  the  person  escape  before  be- 
ins:  beaten,  is  sufficient.^*  But  under  some  statutes  it  seems  that 
where  the  assault  is  made  with  a  dangerous  weapon  with  the  intent  to 
alarm  or  frighten  another  that  the  ability  to  commit  the  battery  need 
not  be  proved. ^- 

§  2824.  Attempt  or  offer  to  strike. — Under  the  definition  of  as- 
sault and  as  shown  by  the  adjudicated  cases,  to  constitute  an  assault 
it  is  not  necessary  that  the  assailant  must  strike  at  the  person  alleged 
to  have  been  assaulted.  The  attempt  may  consist  of  drawing  the 
fist  or  raising  a  stick  with  the  intention  either  apparent  or  declared 
to  strike,  and  so  near  to  the  party  assailed  as  to  endanger  his  person ; 
and  the  act  or  attitude  and  tlie  position  being  sufficient  to  force  him, 
under  a  well  groimded  apprehension  of  personal  injury,  either  to 
strike  in  self-defense  or  to  save  himself  by  flight  or  retreat.-^  The 
distinction  between  an  offer  and  an  attempt  to  strike  is  thus  made  by 
the  Supreme  Court  of  North  Carolina :  "An  assault  is  usually  defined 
to  be  an  offer,  or  attempt  to  strike  another.  An  attempt  means 
something  more  than  an  offer.  As,  therefore,  an  offer  is  a  necessary 
ingredient  in  an  assault,  and  as  an  attempt  or  anything  else  is  not 
such,  it  would  probably  be  more  precisely  accurate  to  say,  that  an 
assault  is  an  offer  to  strike  another."-*  Where  an  offer  or  attempt  to 
strike  is  conditional  it  is  not  an  assault,  as  shown  by  cases  already 
cited;  but  if  the  condition  is  one,  which  the  party  has  no  right  to 
impose,  or  which  in  itself  is  wrong,  then  such  an  attempt  or  offer  is 
held  to  be  an  assault.-^ 

§  2825.  Assault  by  striking-  at — Variance. — It  is  not  always  best 
or  safest  to  charge  in  an  indictment  that  the  assault  was  com- 
mitted by  striking  at,  as  it  has  been  held  that  such  a  charge  must 
be  strictly  proved.     The  safer  and  more  comprehensive  charge  is 

wealth,  88  Va.  1017,  14   S.  E.   916;  State  v.  Myerfield,  61  N.  Car.  108; 

Stephen  v.  Myers,  4  Car.  &  P.  349,  Commonwealth  v.  Brungess,  23  Pa. 

19  E.  C.  L.  548.  Co.  Ct.  13. 

='  Morton  v.   Shoppe,  3  Car.  &  P.  "*  State  v.  Hampton,  63  N.  Car.  13; 

373,  14  E.  C.  L.  616.  State  v.  Myerfield,  61  N.  Car.  108. 

Kief  V.  State,  10  Tex.  App.  286;  -"Commonwealth    v.    White,    110 

State   V.   Levan,    23   Wash.    547,    63  Mass.    407;    People  v.   McKenzie,    6 

Pac.  202.  App.  Div.    (N.  Y.)   199,  39  N.  Y.  S. 

"Johnson  v.   State,   35   Ala.   363;  951;    State  v.  Myerfield,  61  N.  Car. 

People  V.  Yslas,  27  Cal.  630;   Lewis  108. 
V.    Hoover,    3    Blackf.    (Ind.)    407; 


§§  2826,  2827.]  assault.  120 

that  the  assault  was  committed  by  an  attempt  to  strike  or  that  the 
defendant  made  an  assault  and  struck  at  the  prosecuting  witness. 
Where  it  was  charged  that  an  assault  was  committed  by  striking  at 
the  prosecuting  witness  with  a  stick  and  the  proof  showed  only  an 
attempt  or  offer  to  strike,  it  was  held  to  be  a  fatal  variance.^^  An  as- 
sault is  said  to  be  "an  intentional  attempt  to  strike  within  striking 
distance,  which  fails  of  its  intended  effect,  either  by  preventive  inter- 
ference or  by  misadventure."^^ 

§  2826.  With  present  ability — Striking  distance. — It  seems  to  be 
clear  under  the  decided  cases  that  the  proof  must  show  a  present 
ability  to  execute  the  attempt  and  the  intent.  But  it  is  not  necessary 
always  that  the  proof  show  that  the  accused  was  actually  or  really  in 
striking  distance.  The  Supreme  Court  of  California  say :  "It  is  not 
indispensable  to  the  commission  of  an  assault  that  the  assailant  should 
be  at  any  time  within  striking  distance.  If  he  is  advancing  with  in- 
tent to  strike  his  adversary  and  comes  sufficiently  near  to  induce  a 
man  of  ordinary  firmness  to  believe,  in  view  of  all  the  circumstances^ 
that  he  will  instantly  receive  a  blow  unless  he  strike  in  self  defense 
or  retreat,  the  assault  is  complete.  In  such  a  case  the  attempt  has 
been  made  coupled  with  a  present  ability  to  commit  a  violent  injury 
within  the  meaning  of  the  statute.  It  cannot  be  said  that  the  ability 
to  do  the  act  threatened  is  wanting  because  the  act  was  in  some 
manner  prevented.  In  the  present  case  the  defendant  was  guilty  of 
an  assault  if  he  advanced  on  the  prosecutrix  in  such  a  manner  as  to 
threaten  immediate  violence,  notwithstanding  she  succeeded  in  mak- 
ing her  escape  without  injury."-^ 

§  2827.  Assault  and  menace. — There  is  a  distinct  and  recognized 
difference  between  an  assault  and  a  menace.  A  mere  menace  is  not 
made  an  offense;  neither  is  a  conditional  offer  to  commit  violence. 
An  assault  consists  of  more  positive  acts  supplemented  by  an  intent 
to  inflict  violence.    The  Supreme  Court  of  Alabama  recognizes  these 

-"Johnson  v.   State.   35   Ala.   363;  ^'People    v.    Yslas,    27    Cal.    630; 

Smith  v.  Causey,  28  Ala.  655;  Llnd-  State  v.   Myers,   19   Iowa  517;    Peo- 

say  V.  State,  19  Ala.  560;   Common-  pie  v.  McKenzie,  6  App.  Div.  (N.  Y.) 

wealth  V.  Gallagher,  6  Mete.  (Mass.)  199,  39  N.  Y.  S.  951;  Farrar  v.  State, 

565;    see,  1  Roscoe  Cr.  Bv.,   §§  102,  29    Tex.    App.    250,    15    S.    W.    719; 

103,  104;  2  Russell  Crimes,  788,  794,  State  v.   Jones,   2   Pen.    (Del.)    573. 

795.  47   Atl.    1006;    People   v.   Lilley,    43 

^'Lane  v.  State,  85  Ala.  11,  4  So.  Mich.    521,    5    N.    W.    982;    State   v. 

780.  Sims,  3  Strob.  (S.  Car.)  137. 


121  VIOLENCE  IXTEXDED.  [§    2828. 

distinctions  in  a  definition  given  as  follows:  "An  assault  is  an  at- 
tempt, or  offer,  to  do  another  personal  violence,  without  actually  ac- 
complishing it.  A  menace  is  not  an  assault;  neither  is  a  conditional 
ofi^er  of  violence.  There  must  be  a  present  intention  to  strike. 
On  the  question,  how  far  the  intention  must  be  carried  into  actual 
execution  before  the  assault  becomes  complete  in  law,  the  authorities 
do  not  agree.  Holding  a  gun  in  a  threatening  position,  without 
any  attempt  to  use  it,  or  intention  to  do  so,  unless  first  assaulted  by 
the  adversary,  is  not  an  assault.  Drawing  a  pistol,  without  presenting 
or  cocking  it,  is  not  an  assault."-" 

§  2828.  Violence  intended. — According  to  the  rule  established  by 
many  cases,  it  must  be  of  the  essence  of  an  assault  that  violence  was 
intended.  Under  another  class  of  cases  it  is  held  to  be  sufficient  if 
the  party  assailed  has  reasonable  grounds  to  fear  that  injury  will  be 
done  him  unless  he  retreats  or  defends  himself.  "\Miere  the  proof 
shows  that  bystanders  interfere  and  stop  the  assailant  it  is  generally 
conclusive  that  they  believe  from  the  appearances  that  violence  would 
be  done.  The  rule  as  to  the  attempted  violence  has  been  stated  thus : 
"Neither  a  purpose  to  make  an  assault,  nor  any  amount  of  preparation 
for  doing  so,  will  constitute  an  assault,  unless  followed  by  some  hos- 
tile demonstration  against  the  person  toward  whom  the  purpose  is 
entertained."^**  So  it  has  been  said  tliat  "it  is  indispensable  to  the 
ofl^ense  that  violence  to  tlie  person  be  either  offered,  menaced  or 
designed."^^  The  Supreme  Court  of  A'ermont,  after  quoting  numy 
definitions  of  assault  from  text  writers  and  courts,  concluded  under 
the  circumstances  of  the  particidar  case  in  liand,  saying:  "Follow- 
ing the  angry  controversy  of  words,  was  a  threatening  movement  in 
close  proximity,  accompanied  l;)y  violent  language  in  the  nature  of  a 
threat,  and  by  a  much  larger  and  more  powerful  man  than  the 
plaintiff;  and  the  demonstration  caused  the  plaintiff  to  fear 
violence."^-  While  an  assault  is  held  to  be  an  attempt  or  offer,  by  force 

-''State   V.   Blackwell,   9   Ala.    79;  Johnson    v.     State,     43     Tex.     57G: 

Lawson  v.   State,  30  Ala.  14;    John-  Berkeley  v.   Commonwealth,   88  Va 

son  V.  State,  35  Ala.  363;    Simpson  1017.  14  S.  E.  916. 

V.  State,  59  Ala.  1;  People  v.  Yslas,  ""State  v.  Painter,  67  Mo.  84;  Ciit- 

27  Cal.  630;  Brown  v.  State.  95  Ga.  ler  v.    State,  59   Ind.   300;    Klein  v. 

481,  20  S.  E.  495;  Hollister  v.  State,  State,  9  Ind.  App.  365,  36  N.  E.  763. 

156  Ind.  255.  59  N.  E.  847;   State  v.  "   People  v.  Bransby,  32  N.  Y.  525. 

Davis,    1    Ired.    L.    (N.    Car.)    125;  ^=  Bishop  v.  Ranney.  59  Vt.  316.  7 

Higginbotham  v.  State,  23  Tex.  574;  Atl.  820. 


§  2829.]  ASSAULT.  122 

and  violence  to  do  a  corporal  injury  to  another,  the  element  of  self 
defense  must  not  be  overlooked.  However,  if  the  proof  should  show 
that  such  an  attempt  or  offer  was  in  self  defense  the  offense  would 
not  be  established.^^ 

§  2829.  Drawing  firearms. — With  reference  to  a  drawing  of  a 
firearm  in  order  to  constitute  the  assault,  it  is  only  necessary  to  show 
that  the  gun  or  other  weapon  was  intended  to  be  used  immediately; 
and  that  there  was  the  ability,  with  reference  to  distance,  to  inflict 
injury  with  the  gun.  But  it  is  not  necessary  to  show  that  the  gun 
was  actually  pointed  at  the  person,  that  it  was  cocked,  or  a  trigger 
pulled.  On  this  subject  one  court  has  said :  "The  law  has  not  estab- 
lished, as  a  criterion  in  determining  an  attempt  that  the  gun  must 
be  presented,  or  aimed,  or  the  lock  pulled  back,  or  trigger  of  a  rifle 
sprung,  or  any  other  stage  in  the  series  of  acts  that  may  be  per- 
formed in  committing  an  assault.  It  is  sufficient,  that  there  be  an  act 
done,  indicating  an  intention  to  commit  a  battery  immediately,  coup- 
led with  the  ability  to  do  it."^''  It  was  held  in  one  case  that  where 
the  evidence  showed  that  the  assault  consisted  in  shooting  at  another 
it  was  not  necessary  to  prove  that  the  bullet  went  in  the  direction  of 
the  person  shot  at,  as  the  criminality  of  the  act  and  the  guilt  of  the 
accused  did  not  depend  on  the  accuracy  of  the  aim.^^  On  the  ques- 
tion that  it  is  not  necessary  that  the  gun  or  pistol  be  actually  drawn 
and  pointed  at  the  prosecuting  witness  the  Supreme  Court  of  Cali- 
fornia say :  "The  prisoner  put  himself  in  a  position  to  use  the  weapon 
in  an  instant  having  only  to  elevate  the  pistol  and  fire,  at  the  same 
time  declaring  his  intention  to  do  so,  unless  the  prosecutor  would 
leave  the  ground  .  .  .  when  the  party  draws  the  weapon,  al- 
though he  does  not  directly  point  it  at  the  other,  but  holds  it  in  such 
a  position  as  enables  him  to  use  it  before  the  other  party  could  de- 

^  State  v.  Wyatt,  76  Iowa  328,  41  Wyo.  311,  51  Pac.  879,  56  Pac.  596; 

N.  W.  31.  Justice  v.  Phillips,  7  Ky.  L.  R.  439; 

^*  Higginbotham  v.  State,  23  Tex.  State   v.    Lightsey,   43    S.    Car.    114, 

574;  Bell  v.  State,  29  Tex.  492,  494;  20  S.  E.  975;   State  v.  Epperson,  27 

Burton  v.   State,   3   Tex.   App.   408;  Mo.  255;    State  v.  Taylor,  20  Kans. 

Cato  v.  State,  4  Tex.  App.  87;  John-  643;   People  v.  Morehouse,  25  N.  Y. 

son    v.    State,    14    Tex.    App.    306;  St.  294,  6  N.  Y.  S.  763. 

Beach    v.    Hancock,    27   N.    H.    223;  =°  State   v.   Hunt,    (R.    I.)    54  Atl. 

People  v.  Ryan,  27  N.  Y.  St.  916,  28  773:    Domingues   v.    State,    35    Tex. 

N.  Y.   St.   489,   8  N.  Y.   S.  241,  369;  Cr.  App.  973,  40  S.  W.  981:   State  V. 

People  V.  Connor,  25  N.  Y.  St.  138,  Baker,  20  R.  I.  275,  38  Atl.  653. 
€  N.  Y.   S.  220;    Bryant  v.   State,  7 


123  POINTING    FIREARMS.  [§    2830. 

fend  himself,  at  the  same  time  declaring  hi?  intention  to  use  it 
against  the  other,  the  jury  are  fully  warranted  in  finding  that  such 
was  his  intention."^*'  Some  Texas  cases  have  seemingly  attempted  to 
draw  a  very  fine  distinction  between  the  threatened  use  of  a  gun  and 
the  acts  of  the  accused  wliich  were  deemed  indicative  of  preparation 
merely,  rather  than  of  an  attempt  or  purjiose  to  inflict  immediate 
injury.^''' 

^  2830.  Pointing  fireaiins  necessary. — But  a  class  of  cases  holds 
that  in  order  to  constitute  an  assault  witli  a  gun  or  pistol  it  is  neces- 
sary that  the  proof  show  two  things:  (1)  That  the  weapon  was  ac- 
tually presented;  (2)  tliat  it  was  so  presented  within  the  distance  to 
which  tlie  gun  or  pistol  might  do  execution."*  This  class  of  cases 
establishes  the  rule  that  the  holding  or  drawing  of  a  gun  or  pistol 
without  presenting  it  or  pointing  it  toward  the  per.son  or  cocking 
it  is  not  an  assault.""  So  where  a  person  drew  a  revolver  and  dis- 
charged it  near  the  person  complaining  without  any  intention  of  in- 
juring the  complainant  but  for  the  purpose  of  frightening  him  only, 
it  was  held  that  this  did  not  constitute  an  assault.^"  But  it  has  been 
held  that  the  raising  and  pointing  of  a  deadly  weapon  at  another 
is  an  assault;  and  that  when  an  offer  or  attempt  to  strike  is  made 
with  a  deadly  weapon  th.e  person  using  it  will  not  be  permitted  to  say 
that  he  did  not  intend  to  commit  any  personal  violence.*^  One  court 
has  held,  however,  that  as  a  matter  of  law  the  pointing  of  a  pistol  by 
one  person  at  anotlier  is  not  of  itself  an  assault,  but  that  it  may  or 
mav  not  be  according  to  the  attending  circumstances;  and  the  attend- 
ing circumstances  must  be  such  as  to  show  tliat  tliere  was  an  intent 
coupled  with  the  ability  to  do  the  harm,  or  tliat  the  other  party  had  a 
right  so  to  believe  from  tlie  facts  before  liiiu.''-  And  in  one  English 
<?ase  where  the  accused  attempted  to  slioot  a  person  with  a  gun 
properly  loaded,  Init  it  appeared  from  the  evidence  that  the  priming 
was  so  damp  that  the  gun  did  not  go  off,  yet  it  was  held  not  to  be 

■'■People  V.  McMaldn,  S  Cal.   547.  ents  v.    State,   50   Ala.   117;    Tarv<-r 

'''Johnson   v.   State,  43   Tex.   576;  v.    State,    43    Ala.    354;    Simpson    v. 

Cato  V.  State.  4  Tex.  App.  87;  Young  State,  59  Ala.  1;   Chapman  v.  State, 

V.  State,  7  Tex.  App.  75.  78  Ala.  463. 

"Tarver    v.    State.    43    Ala.    354;  « Degenhardt    v.    Heller.    93    Wis. 

Clements  v.  State,  50  Ala.  117;  Ma-  662.  68  N.  W.  411. 

lone  v.   State,  77   Miss.   812,   26   So.  "State   v.    Myerfield,    61    N.    Car. 

568.  108. 

='Lawson    v.    State,    30    Ala.    14;  *^  Richels      v.      State,      1      Sneed 

Johnson  v.  State.  35  Ala.  363;  Clem-  (Tenn.)    606. 


§§  2831,  2832.]  assault.  124 

an  assault  because  the  rifle  ''jH'oved  not  to  be  so  loaded  as  to  be  able 
to  be  discharged."*^ 

§  2831.  Drawing  unloaded  gun — Not  an  assault. — A  class  of  cases 
and  certain  law  writers  have  adopted  the  rule  that  a  person  who 
draws  or  points  a  gun  or  pistol  at  another  person  witliin  shooting  or 
executing  distance,  although  accompanied  by  threats  of  an  intention 
to  shoot,  and  even  where  the  person  at  whom  it  is  pointed  believes 
at  the  time  that  the  gun  or  other  weapon  was  loaded,  is  not  liable  in 
an  action  for  criminal  assault  where  the  proof  shows  that  such  gun 
or  weapon  was  in  fact  not  loaded.**  Tliis  rule  is  evidently  based  on 
two  theories:  (1)  The  question  of  intent;  (2)  and  the  question  of 
the  present  ability.  If  the  question  of  intent  is  the  controlling  one  in 
such  cases,  assuming  the  parties  to  1)p  within  execution  distance,  then 
it  is  apparent  that  no  violence  could  be  inflicted  by  the  unloaded  gun. 
And  this  theory  is  strengthened  wlien  taken  in  connection  with  the 
rule  requiring  present  ability,  as  it  is  evidence  that  there  would  be  no 
present  ability  from  the  attempted  or  threatened  use  of  an  unloaded 
gun. 

§  2832.  Drawing  unloaded  gun — An  assault. — But  some  well  con- 
sidered cases  incline  to  the  view  that  it  is  not  so  mucli  the  actual  pres- 
ent ability  as  it  is  the  apparent  danger  or  the  outward  demonstration 
from  the  standpoint  of  the  person  assailed.  This  rule  is  applied  in 
the  case  of  presenting  or  pointing  an  unloaded  gun  at  another  who 
believes  it  to  be  loaded.  In  speaking  of  this  situation  the  Supreme 
Court  of  Arkansas  say:  "According  to  this  view,  if  A  menacingly 
point  at  B  an  unloaded  gun,  which,  however,  B  believes  to  be  loaded 
and  thereby  put  in  fear  of  immediate  bodily  injury,  A  is  guilty  of 
an  indictable  assault."*'^    The  Supreme  Court  of  Iowa,  after  revicw- 

*'Reg.    V.    James.    1    Car.    &    Kir.  App.    232;    United    States   v.    Hand, 

530.  2   Wash.    (U.    S.)    435;    Reg.    v.    St. 

"Chapman  v.  State,  78  Ala.  463;  George,   9   Car.  &  P.   483;    Blake  v. 

Vaughan    v.     State,     3     Sm.    &    M.  Barnard,  9  Car.  &  P.  626;   Klein  v. 

(Miss.)    553;    Beach  v.  Hancock,  27  State,  9  Ind.  App.  365,  36  N.  E.  763. 

N.  H.  223;  State  v.  Cherry,  11  Ired.  "''Pratt    v.    State,    49    Ark.    179; 

L.   (N.  Car.)  475;   State  v.  Godfrey,  State    v.     Shepard,     10     Iowa     126; 

17   Ore.   300,   20   Pac.   625;    Crow  v.  Commonwealth  v.  White,  110  Mass. 

State.  41  Tex.  468;  McKay  v.  State,  407;     State    v.     Smith,    2     Humph. 

44    Tex.    43;    Caldwell    v.    State,    5  (Tenn.)    459;   Robertson  v.  State,  2 

Tex.  18,  20;  Burton  v.  State,  3  Tex.  Lea    (Tenn.)    239;    State  v.  Herron, 

App.  408;    Forrest  v.   State,   3  Tex.  12  Mont.  230,  29  Pac.  819;  Beach  v. 


125  UNLOADED    GUN.  [§    28;l;>. 

ing  the  authorities  on  tlio  subject,  said :  "If  the  question  were  gov- 
erned solely  by  the  intent  of  the  defendant,  such  an  act  would  not  bo 
considered  as  amounting  to  an  assault,  and  on  the  other  hand,  if  it 
were  governed  by  the  probable  and  natural  effect  on  the  person  aimed 
at,  or  by  the  tendency  of  the  act  to  induce  a  broach  of  the  peace,  it 
would  properly  be  regarded  as  such.  After  viewing  the  question  in 
its  various  lights,  we  are  inclined  to  hold  with  those  who  regard  it 
as  an  assault,  where  the  person  aimed  at  does  not  know  but  that  the 
gun  is  loaded,  or  has  no  reason  to  believe  that  it  is  not."**^  So  it  is 
held  that  "no  specific  intent  is  necessary  to  constitute  the  crime  under 
this  statute  other  than  such  as  may  be  embraced  in  the  act  of  mak- 
ing an  assault  with  a  dangerous  weapon.  This  simply  embraces  the 
intentional  and  unlawful  use  of  a  dangerous  weapon,  by  means  of 
which  an  assault  is  committed  with  such  weapon  upon  the  person 
of  another.''*^ 

§  2833.  Unloaded  g^n — Civil  and  criminal  assault. — There  seems 
to  have  been  a  different  rule  established  in  civil  and  criminal  cases 
with  respect  to  the  liability  for  an  assault  with  an  unloaded  gun.  The 
cases  holding  that  the  act  constitutes  a  criminal  assault  would  with 
perfect  consistency  hold  that  there  was  a  civil  liability.  The  cases 
adopting  the  contrary  rule  seem  to  think  it  necessary  to  recognize 
a  distinction  between  such  assaults  in  criminal  prosecutions  and  in 
civil  actions  for  damages.  The  reasoning  adopted  by  one  writer  at 
least  was  that  "if  intentionally  frightening  a  person's  animals  with 
a  gun  gives  him  a  right  of  action,  a  fortiori  should  he  have  an  action 
against  any  one  who  in  this  manner  intentionally  frightens  him.  It 
cannot  be  doubted  that  in  such  cases  an  action  lies,  and  the  act  done 
may  with  propriety  enough  be  called  an  actionable  assault,  but  it  does 
not  therefore  follow  that  it  is  an  indictable  assault."*^  The  Su- 
preme Court  of  Xew  Hampshire  has  fully  discussed  the  question  in  a 
civil  action:  but  it  made  no  distinction  between  civil  and  criminal 
assaults.  In  speaking  on  the  subject  generally  the  court  said :  '"One 
of  the  most  important  objects  to  be  attained  by  tlie  enactment  of  laws 
and  the  institutions  of  civilized  society  is,  each  of  us  shall  feel  secure 

Hancock,    27    N.    H.    223;     Reg.    v.  Hannam  v.  Mockett,  2  B.  &  C.  934; 

James.  1  Car.  &  Kir.  530.  Carrington  v.  Taylor.  11  East  571; 

*=  State  v.  Shepard.  10  Iowa  126.  Ibottson    v.    Peat,    3    H.    &    C.    644; 

^' State   v.    Godfrey.    17    Ore.    300,  Keble   v.    Hickringill.    11    Mod.    74; 

301.  20  Pac.  625.  Keeble  v.  Hickeringill.  11  Mod.  130, 

*'2  Green  Cr.  Law.  note  271,  274;  3  Salk.  9. 


§  2834,]  ASSAULT.  12C> 

against  unlawful  assaults.  Without  such  security  society  loses  most 
of  its  value.  Peace  and  order  and  domestic  happiness,  inexpressibly 
more  precious  than  mere  forms  of  government,  cannot  be  enjoyed 
without  the  sense  of  perfect  security.  We  have  a  right  to  live  in  so- 
ciety without  being  put  in  fear  of  personal  harm.  But  it  must  be  a 
reasonable  fear  of  which  we  complain.  And  it  surely  is  not  unreason- 
able for  a  person  to  entertain  a  fear  of  personal  injury,  when  a  pistol 
is  pointed  at  him  in  a  threatening  manner,  when,  for  aught  he  knows, 
it  may  be  loaded,  and  may  occasion  his  immediate  death.  The  busi- 
ness of  the  world  could  not  be  carried  on  with  comfort  if  such  things 
could  be  done  with  impunity."*^ 

§  2834.    Drawing  gun — ^Burden  of  proof  as  to  being  loaded. — Out 

of  this  conflict  of  cases  on  the  question  of  whether  or  not  the  draw- 
ing or  pointing  of  a  loaded  or  unloaded  gun  is  sufficient  to  constitute 
an  assault,  grows  the  question  of  the  burden  of  proving  whether  or  not 
the  gun  was  loaded.  On  the  trial  of  a  case  where  a  charge  of  an  as- 
sault committed  by  pointing  a  gun  or  pistol  at  another  person,  the 
question  is,  must  the  state  prove  as  a  part  of  its  original  case  that  the 
weapon  was  loaded?  The  courts  holding  that  the  drawing  or  point- 
ing of  an  unloaded  gun  at  another  constitutes  an  assault  would  not 
require  the  state  to  prove  the  condition  of  the  gun,  neither  would  they 
ordinarily  permit  the  accused  to  show  that  the  gun  was  not  loaded  as  a 
matter  of  defense.  The  other  class  of  cases  it  seems  establishes  the 
rule  that  the  burden  is  on  the  defendant  to  show  that  the  gun  was. 
not  loaded.^**  It  seems  to  be  the  rule  that  where  a  person  draws  and 
points  a  gun  toward  another  within  shooting  distance,  accompanied 
by  a  threat  to  shoot  or  to  do  other  violent  injury,  it  will  be  presumed 
that  the  gun  was  loaded.^ ^  A  few  cases,  however,  have  held  that  the 
burden  is  on  the  state  to  show  that  the  gun  or  pistol  under  such  cir- 
cumstances was  loaded,  and  that  no  inference  on  that  question  can 
be  drawn  from  the  fact  that  an  attempt  was  made  to  use  the  weapon 
as  if  it  were  in  fact  loaded.^ ^ 

*^  Beach  v.  Hancock,  27  N.  H.  223.  "  Keefe  v.  State,  19  Ark.  190,  192; 

The  court  makes  no  distinction  be-  State  v.   Herron,    12   Mont.    230,   29 

tween  civil  and  criminal  liability.  Pac.  819;    Beach  v.  Hancock,  27  N. 

™  State  V.    Herron,   12   Mont.   230,  H.   223;    Richels  v.    State,   1   Sneed 

29    Pac.    819;    State    v.    Cherry,    11  (Tenn.)  606. 

Ired.  L.   (N.  Car.)   475;   Caldwell  v.  '^^  State    v.    Napper,    6    Nev.    113: 

State,  5  Tex.  18,  20;  Crow  v.  State,  State  v.    Swails,   8   Ind.  524;    Klein 

41  Tex.  468;  Burton  v.  State,  3  Tex.  v.  State,  9  Ind.  App.  365,  36  N.  E 

App.  408.  763;  Henry  v.  State,  18  Ohio  32. 


127  ASSAULT    AND    BATTERY — DEFINITION.  [§    2835. 


Assault  and  battery. 

§  2835.  Definition. — An  assault  and  battery  may  be  regarded  or 
defined  as  tlie  completion  or  culmination  of  an  assault.  The  assault 
is  usually  considered  as  a  part  of  or  as  being  included  in  the  battery 
or  the  assault  and  battery.  There  uiay  be  an  assault  under  the  rules- 
and  definitions  heretofore  given,  without  a  battery ;  but  it  is  evident 
that  tliere  can  l)e  no  battery  without  an  assault.-''^  The  various  stat- 
utes defining  this  offense  usually  embody  the  common  law  idea  of 
assault  and  battery.  According  to  the  common  law  the  least  touch- 
ing of  the  person  of  another  in  anger  was  considered  a  battery.  The 
reason  given  for  this  was  that  the  law  could  not  draw  the  lino  be- 
tween different  degrees  of  violence,  and  consequently  it  totally  pro- 
hibited the  lowest  degree  of  any  violence.-^*  For  these  reasons  a 
charge  of  unlawful  beating  is  sufficiently  sustained  by  proof  of  the 
least  unlawful  touching  of  the  person  of  another  in  anger.  The  un- 
lawful beating  as  used  in  such  statutes  is  held  to  mean  the  same  as 
the  word  battery  at  common  law.^^  As  sometimes  expressed :  "A 
battery  is  defined  to  be  the  wilful  touching  of  the  person  of  another 
by  the  aggressor  or  by  some  substance  put  in  motion  by  him."'^^'''  The 
statutes  of  some  of  the  states  provide  in  substance  that  auy  person 
who  in  a  rude,  insolent  and  angry  manner  shall  unlawfully  touch 
another,  shall  be  deemed  guilty  of  an  assault  and  battery.  Under  such 
a  definition  it  has  been  held  that  the  proof  must  show  at  least  three 
things:  (1)  The  touching  of  the  person  of  another;  (2)  such  touch- 
ing must  be  unlawful;  (3)  the  unlawful  touching  must  be  either  in 
a  rude  or  an  insolent,  or  an  angry  manner.  Proof  that  it  was  done 
in  either  manner  is  sufficient.  But  it  is  held  to  be  insufficient  to 
charge  and  prove  only  that  the  touching  was  unlawfully  done.^^    So 

■^^  Norton   v.    State,    14    Tex.    387;  Tex.   App.   543,  8   S.   W.   664;    State 

Fitzgerald  v.  Fitzgerald,  51  Vt.  420;  v.  Cody,  94  Iowa  169,  62  N.  W.  702. 

Sweeden  v.  State,  19  Ark.  205;  State  "'■  3  Blackstone  Comm.  120;    Hunt 

Twogood,  7  Iowa  252:  State  v.  Cody,  v.    People.    53    III.   App.    Ill;    Good- 

94  Iowa  169,  62  N.  W.  702;  Furnish  rum  v.  State,  60  Ga.  509;  Norton  v. 

V.   Commonwealth,   14   Bush     (Ky.)  State,  14  Tex.  387. 

180;  Johnson  v.  State.  17  Tex.  515;  '"'Wescott  v.  Arbuclcle,   12   Bradf. 

Commonwealth  v.  Brungess,  23  Pa.  (111.  App.)  580:  Razor  v.  Kinsey.  55 

Co.  Ct.  13:  see,  Vol.  TIT,  Ch.  83.  111.  App.  605. 

"Russell   Crimea   1020:    2   Bishop  •'Howard    v.    State.   77    Ind.   401; 

Cr.  Law,  §   72;    Hunt  v.  People.  53  State   v.    Philley.    67   Ind.   304;    Mc- 

111.    App.    Ill;    Foster   v.    State,    25  Culley  v.  State.  62  Ind.  428;  Mr-Don- 


§§  3836,  2837.]  assault  and  battery.  138 

it  has  been  defined  to  be  "any  touching  of  the  person  of  an  individual, 
in  a  rude  or  angry  manner,  without  justification."^*  It  has  been  held 
sufficient  to  establish  the  charge  of  an  assault  and  battery  where  in 
a  civil  action  the  defendant  admitted  that  he  seized  hold  of  the  plain- 
tiff and  held  him  awhile,  and  thereafter  threw  a  piece  of  board  strik- 
ing him  on  the  leg.^" 

§  2836.  Rule  stated  by  Mr.  Greenleaf. — This  rule  is  stated  by  Mr. 
Greenleaf  as  follows:  "A  battery  is  the  actual  infiiction  of  violence 
on  the  person.  This  averment  will  be  proved  by  evidence  of  any  un- 
lawful touching  of  the  person  of  the  plaintiff,  whether  by  the  de- 
fendant himself,  or  by  any  substance  put  in  motion  by  him.  The 
degree  of  violence  is  not  regarded  in  the  law;  it  is  only  considered 
by  the  jury,  in  assessing  the  damages  in  a  civil  action,  or  by  the 
judge,  in  passing  sentence  upon  indictment.  Thus,  any  touching  of 
the  person,  in  an  angry,  revengeful,  rude  or  insolent  manner ;  spitting 
upon  the  person;  jostling  him  out  of  the  way;  pushing  another 
against  him;  throwing  a  squib  or  any  missile,  or  water  upon  him; 
striking  the  horse  he  is  riding,  whereby  he  is  thrown ;  taking  hold  of 
his  clothes  in  an  angrv  or  insolent  manner,  to  detain  him,  is  a  bat- 
tery. So,  striking  the  skirt  of  his  coat,  or  the  cane  in  his  hand,  is  a 
battery,  for  anything  attached  to  the  person  partakes  of  its  inviola- 
bility."«° 

§  2837.  Direct  striking  not  necessary. — In  order  to  constitute  as- 
sault and  battery  it  is  not  necessary  that  the  assailant  actually  strike 
the  person  assailed  with  his  hand  or  fist;  nor  is  it  necessary  that  the 

aid  v.  Franchere,  102  Iowa  496,  71  600;  Lord  Derby,  The,  17  Fed.  265 

N.  W.  421;  Slusser  v.  State,  71  Ind.  Conway  v.   Reed,   66   Mo.   346,  353 

280;  Hays  v.  State,  77  Ind.  450.  State  v.  Davis,  1  Hill  (S.  Car.)  46 

^' State    v.    Harden,    2    Speer    (S.  Perkins  v.  Stein.  94  Ky.  436,  22  S. 

Car.)   152.  W.  649;  Carr  v.  State,  135  Ind.  1,  34 

=»  Fitzgerald  v.  Fitzgerald,  51  Vt.  N.  E.  533,  41  Am.  St.  408;  Brown  v. 

420.  Kendall,     6     Cush.      (Mass.)      296 

""1  Greenleaf  Ev.,   §   84;    Kirland  Leame    v.    Bray,    3    East    593,    602 

V.  State,  43  Ind.  146;    Marentille  v.  Forde  v.  Skinner,  4  Car.  &  P.  239 

Oliver,  2  N.  J.  L.  358;   Bull  v.  Col-  Reg.    v.    Cotesworth,    6    Mod.    172 

ton,  22  Barb.  (N.  Y.)  94;  Respublica  Cole  v.   Turner,  6   Mod.   149;    Scott 

V.    De    Longchamps,    1    Dall.    (Pa.)  v.  Shepherd.   2  W.  Bl.  892;   Pursell 

111;     Commonwealth     v.     Fleet.     8  v.  Horn,  8  Ad.  &  El.  602,  605;  Simp- 

Phila.  (Pa.)  614;  Clark  v.  Downing,  son  v.   Morris,   4  Taunt.   821;    Dod- 

55  Vt.  259;  United  States  v.  Ortega,  well  v.  Burford,  1  Mod.  24. 
4  Wash.  (U.  S.)  531,  Baldw.  (U.  S.) 


129  INTENT.  [§   2838. 

striking  be  done  with  a  weapon  or  instrument  held  by  the  assailant. 
The  assault  and  battery  may  be  committed  in  an  indirect  manner; 
that  is  by  setting  in  motion  or  projecting  some  substance  or  force 
that  touches  or  operates  upon  the  person  of  another.  The  legal  propo- 
sition is  stated  as  follows:  "One  receives  bodily  harm,  in  a  legal 
sense,  when  another  touches  his  person  against  his  will  with  physical 
force,  intentional,  liostile  and  aggressive,  or  projects  such  force 
against  his  person. "^^ 

§  2838.  Intent. — A  class  of  cases  holds  that  it  is  necessary  on  a 
charge  of  assault  and  battery  to  prove  the  intent  with  which  the  act 
was  done.  By  this  is  meant  that  the  proof  must  show  that  tlie  ac- 
cused intended  to  do  some  bodily  harm  to  the  person  of  the  prosecut- 
ing witness.  As  said  in  a  Texas  case :  "To  constitute  an  assault  and 
battery  there  must  be  an  intent  to  injure.  This  must  appear  from 
the  facts  and  circumstances  surrounding  the  transaction.^'"-  As  stated 
by  one  court:  "To  support  a  charge  of  an  assault  and  battery  it  is 
necessary  to  show  that  the  act  complained  of  w^as  intentionally  com- 
mitted."®' A  person  may  be  guilty  of  an  assault  and  battery  whatever 
be  the  means  or  extent  of  the  force  or  degree  of  violence  used;  it 
has  been  held  sufficient  if  there  is  used  any  unlawful  violence  upon 
another's  person  with  intent  to  injure  him.^*  And  for  the  purpose 
of  proving  the  intent,  it  is  proper  to  inquire  if  there  had  not  been 
prior  difficulties  between  the  defendant  and  the  prosecuting  witness.*^^ 
This  rule  is  not  nullified  by  the  rule  elsewhere  stated  that  the  intent 
may  be  inferred  from  the  act  or  from  the  injury  inflicted.  The  effect 
of  this  rule  is  to  cast  the  burden  on  the  defendant  to  show  that  the 
injury  complained  of  was  caused  by  accident  or  that  it  was  not  in- 
tentionally inflicted. ""^  Hence  under  this  rule  requiring  the  presence 
of  intent  as  the  element  of  the  crime,  it  may  be  shown  that  the  inten; 
was  wholly  wanting  and  that  the  injury  complained  of  was  the  resul': 

"People   v.    Moore,    50    Hun    (N.  State   v.   Clayborne,   14    Wash.   62«., 

Y.)  356,  3  N.  Y.  S.  159.  45  Pac.  403. 

•=  Rutherford    v.    State,    13    Tex.  "'  Vanvactor  v.  State,  113  Ind.  27C, 

App.  92;  Dickenson  v.  State,  24  Tex.  15  N.  E.  341. 

App.    121,    5    S.    W.    648;    "Ware    v.  «*  Evans    v.    State,    25    Tex.    Sup. 

State,  24  Tex.  App.  521,  7  S.  W.  240;  303;   Jarnigan  v.  State,  6  Tex.  App. 

as  to  what  is  a  sufficient  charge  of  465. 

intent,   see,    State   v.   Carpenter,   23  "'  State   v.    Montgomery,    65    Iowa 

Iowa  506;    State  v.  Clark,  80   Iowa  483,  22  N.  W.  639. 

517,  45  N.  W.  910;    State  v.  Harri-  "^Rutherford    v.    State.    13    Tex. 

son,    82    Iowa    716,    47    N.    W.    777;  App.  92. 

Vol.  4  Elliott  Ev. — 9 


§§  2839-2841.]  assault  and  battery.  130 

of  accident.*'^  But  notwithstanding  this  rule  requiring  proof  of  in- 
tent it  has  been  held  that  where  it  appeared  that  the  accused  at- 
tempted to  commit  an  assault  and  battery  upon  another  person  but 
accidentally  struck  and  injured  a  bystander,  he  was  guilty  of  an  as- 
sault and  battery.®* 

§  2839.  Intent  not  essential  to  the  crime. — But  some  cases  hold 
that  in  actions  for  simple  assault  and  battery  the  intent  is  not  of  the 
essence  of  the  crime.  That  the  only  proof  required  is  to  show  that 
the  defendant  committed  the  act  or  set  in  motion  the  force  which  re- 
sulted in  the  injury  though  it  may  have  been  done  without  any  in- 
tent to  injure.'^  This  is  the  rule  where  the  statute  does  not  make  the 
specific  intent  to  wound  or  inflict  grievous  bodily  harm  an  ingredient 
of  the  offense.'^" 

§  2840.     Intent — Presumption. — From  the  difficulty  of  proving  the 

specific  intent  the  law  very  generously  presumes  the  existence  of  the 
intent  from  certain  acts  or  the  result  of  such  acts.  The  rule  on  this, 
subject  at  common  law  was,  that  "when  the  injury  is  caused  by  vio- 
lence to  the  person,  the  intent  to  injure  is  presumed,  and  it  rests  with 
the  person  inflicting  the  injury  to  show  accident  or  innocent  inten- 
tion.'^^  So  it  was  held  sufficient  to  show  that  the  accused  by  force 
poured,  or  attempted  to  pour  upon  the  person  of  another,  a  mixture 
of  spirits  of  turpentine  and  pepper.'^^ 

§  2841.  Intent — Inferred  from  circumstances. — While  it  is  in- 
cumbent upon  the  state  to  prove  the  intent,  yet  the  law,  recognizing 
the  difficulty  of  proving  mental  states,  does  not  require  proof  of  such 
intent  by  direct  evidence,  but  it  may  be  established  by  proof  of  such 
facts  and  circumstances  from  which  the  intent  may  naturally  or  rea- 
sonably be  inferred.  One  court  very  aptly  stated  the  rule  thus :  "But 
it  is  generally  true  that  the  state  is  not  expected  and  cannot  be  re- 
quired to  make  proof  of  felonious  intent,  as  a  fact,  by  direct  and 
positive  evidence;  for  as  a  general  rule,  men  who  do  or  commit  acts 
do  not  proclaim  in  public  places  the  intent  with  which  such  acts 
are  done.   If  the  state  were  required  to  make  direct  and  positive  proof 

«'  Vincent  v.  Stinehour,  7  Vt.  62.  •"  State    v.    Broadbent,    19    Mont. 

"« McCay  v.  State,  32  Tex.  Cr.  App.     467,  48  Pac.  775. 
233,  22  S.  W.  974.  ••  Evans    v.    State,    25    Tex.    Sup. 

"Hill  V.  State,  63  Ga.  578.  303. 

"Murdock  v.  State,  65  Ala.  520. 


131  INJURY  TO  FEELINGS.  [§  2842. 

of  the  felonious  intent  which  characterizes  the  act  done  as  a  public 
offense,  the  result  would  be  that  many  persons,  charged  and  guilty 
of  public  crimes,  would  go  acquit  'unwhipt  of  justice.'  Therefore 
all  that  the  state  is  required  to  do  in  such  cases  is  to  introduce  such 
evidence  on  the  trial  of  the  cause  as  will  satisfy  the  triers  of  the 
facts,  whether  court  or  jury,  beyond  a  reasonable  doubt,  not  only  tliat 
the  act  was  done  by  tlie  defendant,  but  tliat  it  was  done  with  the 
felonious  intent  charged  in  the  indictment."'^  So  it  is  held  that  the 
intent  may  be  inferred  from  the  act  itself,  and  that  in  a  certain 
class  of  cases  no  further  proof  of  intent  is  required.  But  in  some  cases 
of  simple  assault  and  battery  it  is  held  that  the  intent  will  not  be 
stretched  beyond  the  result  of  the  blow.'^*  This  rule  that  the  intent 
or  malice  may  be  inferred  from  the  act  is  very  generally  extended 
to  the  point  of  holding  that  the  accused  will  not  be  permitted  to 
overcome  such  inference  by  a  statement  that  he  did  not  intend  any 
bodily  injury  or  that  he  did  the  act  in  fun  or  sport.  This  rule  ap- 
plies especially  in  cases  where  persons  are  injured  by  the  discharge  of 
a  gun  or  pistol  for  the  purpose  of  frightening  others.''^ 

§  2842.  Injury  to  feelings. — The  courts  generally  adhere  to  the 
rule  that  in  order  to  constitute  an  assault  and  battery  there  must  be 
an  unlawful  touching  in  some  manner  prohibited  by  the  statute. 
Some  courts  admitting  this  rule  recognize  that  while  there  must 
be  some  physical  act  committed  by  the  assailant  yet  the  violence  ma}' 
be  either  to  the  person  or  to  the  feelings  or  mind.  This  rule  was 
aptly  stated  by  the  Texas  Court  of  Appeals  as  follows :  "The  use  of 
any  unlawful  violence  upon  the  person  of  another,  with  the  intent  to 
injure,  is  an  assault  and  battery.  From  this,  two  acts  must  concur, 
one  physical  and  the  other  mental, — the  act  and  the  accompanying 
intent.  There  must  be  a  physical  act  done  by  the  assailant,  which 
takes  effect  upon  the  person  of  the  party  assailed.  The  slightest  force 
is  sufficient;  the  least  touching  of  the  person  of  another  will  suffice. 
The  act  done  or  force  used  which  takes  effect  must  be  intended,  other- 
wise it  would  be  accidental  and  therefore  not  unlawful.  To  the  in- 
tended act  or  force  must  be  added  the  intent  to  injure  the  party  as- 
sailed.  The  injury  intended  may  be  to  the  feelings  or  mind,  as  well 

"Padgett  V.  State,  103  Ind.  550.  33  N.  W.  30;  People  v.  Miller,  f»l 
3  N.  E.  377.  Mich.  639,  52  N.  W.  65. 

"People  v.  Ross,  66  Mich.  94.  96,         ">  Smith    v.     Commonwealth,     100 

Pa.  St.  324.     See  §  2818,  et  seq. 


§§  2843,  2844.]  assault  and  battery.  132 

as  to  the  person.  The  violence  being  used  or  the  act  being  done,  if 
the  natural  consequence  of  the  act  or  violence  is  an  injury,  the  law 
presumes  this  injury  to  have  been  intended,  unless  it  be  shown  that 
the  intention  was  innocent  and  not  culpable.  When  an  injury  is  ac- 
tually inflicted  upon  the  person,  the  presumption  that  it  was  in- 
tended obtains.  If  to  the  mind,  or  feelings,  the  act  or  violence  used 
must  in  its  nature  be  calculated  to  wound  or  injure  before  the  inten- 
tion to  injure  will  be  presumed.  When  it  is  sought  to  convict  for  an 
injury  to  the  feelings  or  mind,  the  character  of  a  person  assaulted 
with  all  of  the  surrounding  facts  become  of  vital  importance  in  de- 
termining whether  there  was  an  intent  to  injure."^^ 

§  2843.  Parent — Assault  and  battery  on  child. — The  courts  of  all 
civilized  countries  recognize  that  parents  in  the  exercise  of  the  right- 
ful and  natural  authority  have  the  power  to  administer  correction 
and  chastisement  in  the  punishment  of  their  children.  But  courts  are 
equally  zealous  in  guarding  children  against  punishment  that  is  un- 
reasonable or  inhuman  and  cruel.  The  general  rule  is  well  stated  by 
the  Indiana  court  as  follows :  "The  law  is  well  settled  that  a  parent 
has  the  right  to  administer  proper  and  reasonable  chastisement  to  his 
child  without  being  guilty  of  assault  and  battery ;  but  he  has  no  right 
to  administer  unreasonable  or  cruel  and  inhuman  punishment.  If 
the  punishment  is  excessive,  unreasonable  or  cruel,  it  is  unlawful. 
The  mere  fact  that  the  punishment  was  administered  by  the  appel- 
lant upon  the  person  of  his  own  child  will  not  screen  him  from  crimi- 
nal liability.  Whether  or  not  the  punishment  inflicted  in  this  case 
was  excessive  or  cruel  was  a  question  for  the  jury."'''' 

§  2844.  Teacher — Assault  and  battery  on  pupil. — The  law  gener- 
ally concedes  to  a  teacher  the  right  to  punish  the  pupil  but  the  law 
holds  that  such  punishment  must  be  for  the  correction  of  the  pupil 
and  must  be  in  moderation,  with  the  proper  motive,  and  not  from 
vindictiveness  nor  in  the  spirit  of  malice.   When  the  proof  shows  that 

"  Donaldson  v.  State,  10  Tex.  App.  Hutchinson,    124   Cal.    677,   57   Pac. 

307;    Rutherford   v.   State,   13   Tex.  674;  Neal  v.  State,  54  Ga.  281;  State 

App.  92.  v.   Bitman,  13   Iowa  485;   Common- 

"  Hornbeck  V.  State,  16  Ind.  App.  wealth    v.    Coffey,    121    Mass.    66; 

484,  45  N.  E.  620;   Hinkle  v.  State,  State    v.    Alford,    68    N.    Car.    322; 

127  Ind.  490,  26  N.  E.  777;  Fletcher  State  v.  Jones,  95  N.  Car.  588;  John- 

V.  People,  52  111.  395;  Smith  v.  Slo-  son  v.  State,  2  Humph.  (Tenn.)  282. 
cum,    62    111.    354;     Hutchinson    v. 


133  BY  PARENT — PRESUMPTION  AND  BURDEN  OF  PROOF.       [§    2845. 

the  punishment  inflicted  was  immoderate  or  unreasonable,  the  teaclier 
is  held  to  be  criminally  liable.  This  rule  was  stated  by  the  Massachu- 
setts court  thus:  "If,  in  inflicting  punishment  upon  his  pupil  he 
went  beyond  the  limit  of  moderate  castigation,  and,  either  in  the 
mode  or  degree  of  correction  was  guilty  of  any  unreasonable  and  dis- 
proportionate violence  or  force,  he  was  clearly  liable  for  such  in  a 
criminal  prosecution."  It  was  held  in  the  same  case  that  a  wrongful 
intent  may  be  inferred  from  proof  of  the  unreasonable  and  excessive 
use  of  force.'^^  And  on  the  same  subject  the  Supreme  Court  of  Indiana 
say:  "To  support  a  charge  of  an  assault  and  battery  it  is  necessary 
to  show  that  the  act  complained  of  was  intentionally  committed.  But 
in  the  case  of  the  chastisement  of  a  pupil,  the  intent  may  be  inferred 
from  the  unreasonableness  of  the  method  adopted  or  the  excess  of 
force  employed,  but  the  burden  of  proving  such  unreasonableness 
and  such  excess  rests  upon  the  state.  In  such  a  case  in  addition  to  the 
general  presumption  of  his  innocence,  the  teacher  has  the  presump- 
tion of  having  done  his  duty  in  support  of  his  defense."^* 

§  2845.  Assault  and  battery  by  parent — Presumption  and  burden 
of  proof. — In  seeking  to  establish  the  charge  of  assault  and  battery 
against  a  parent  or  against  one  who  stands  in  loco  parentis,  a  differ- 
ent rule  as  to  the  proof  prevails.  No  criminal  intent  is  inferred  from 
the  fact  of  the  punishment  of  a  child  by  a  parent  or  teacher.  On  the 
contrary  the  law  presumes  the  absence  of  any  criminal  intent,  and 
that  he  has  done  his  duty.®**  And  in  addition  to  this  it  is  pre- 
sumed that  the  chastisement  was  proper  and  the  punishment  moder- 
ate.®^ On  the  question  of  the  burden  of  proof  in  such  eases  and  the 
presumption,  the  Supreme  Court  of  Tennessee  say:  "We  think  the 
proper  rule  is,  that  where  the  relation  of  schoolmaster  and  scholar, 

"Commonwealth    v.     Randall,     4  Vt.   102;    State  v.   Burton,   45   Wis. 

Gray  (Mass.)  36;  Cooper  v.  McJun-  150. 

kin,  4   Ind.   290;    Gardner  v.   State,  ""Vanvactor  v.  State,  113  Ind.  276, 

4    Ind.    632;    Danenhoffer   v.    State,  15  N.  E.  341;   Fertich  v.  Michener, 

69  Ind.  295;  Vanvactor  v.  State,  113  111  Ind.  472,  11  N.  E.  605;   Lander 

Ind.  276,  15  N.  E.  341;  State  v.  Pen-  v.  Seaver,  32  Vt.  114. 

dergrass,    2    Dev.    &    B.    (N.    Car.)  ""Vanvactor  v.  State,  113  Ind.  276, 

365;  State  v.  Alford,  68  N.  Car.  322;  15  N.  E.  341. 

State  v.  Jones,  95  N.  Car.  588;  State  "Anderson     v.     State,     3     Head 

V.   Stafford,  113  N.   Car.  635,   18   S.  (Tenn.)    454;    Turner   v.    State,    35 

E.  256;   State  v.  Rhodes,  61  N.  Car.  Tex.    Cr.    App.    369,    33    S.    W.    972; 

453;     Anderson    v.    State,    3    Head  Hathaway  v.  Rice.  19  Vt.  102. 
(Tenn.)  454;  Hathaway  v.  Rice,  19 


§§  2846,  2847.]  assault  and  battery.  134 

parent  and  child,  master  and  apprentice,  or  any  similar  relation,  is 
established  in  defense  of  a  prosecution  of  this  sort,  the  legal  presump- 
tion is,  that  the  chastisement  was  proper;  this  must  be  rebutted  by 
showing  on  the  part  of  the  state  or  the  proof  before  the  jury  that  it 
was  excessive,  or  without  any  proper  cause.  To  hold  a  parent  bound 
to  prove  that  he  had  good  cause  to  whip  his  child,  or  be  subject  to  a 
conviction  upon  indictment,  would  be  monstrous.  The  same  rule 
applies  to  the  relation  under  consideration."^-  "In  order  to  convict 
a  parent  the  state  must  show  that  he  was  inflicting  immoderate  pun- 
ishment upon  the  girl."®^ 

§  2846.  Excessive  punishment — What  constitutes. — The  question 
of  the  excessive  cruelty  of  the  punishment  is  to  be  left  to  the  jury. 
But  where  the  proof  shows  that  the  punishment,  however  severe,  pro- 
duced temporary  pain  only,  and  no  permanent  results,  it  is  not  neces- 
sarily inhuman  and  cruel  or  beyond  parental  authority  and  for 
the  reformation  of  the  child.  But  "any  punishment  therefore  which 
may  seriously  endanger  life,  limb  or  health  or  shall  disfigure  the 
child,  or  cause  any  other  permanent  injury,  may  be  pronounced  in 
itself  immoderate,  as  not  only  being  unnecessary  for,  but  inconsist- 
ent with,  the  purpose  for  which  correction  is  authorized."^* 

§  2847.  Self-defense. — The  rules  of  proof  where  the  accused  justi- 
fies his  acts  on  the  ground  of  self-defense  are  practically  the  same 
in  cases  of  assault  and  battery  as  those  in  higher  grades  of  offenses. 
These  rules  will  be  given  more  fully  and  the  authorities  more  gen- 
erally collected  in  subsequent  chapters.  The  general  rule  is  that  when 
a  person  is  without  fault,  is  in  a  place  where  he  has  a  right  to  be,  and 
is  assaulted,  he  has  a  right  to  defend  himself  against  the  threatened 
or  attempted  assault.  As  sometimes  stated  he  has  the  right  to  repel 
force  by  force,  and  this  he  may  do  without  retreating.  If  the  proof 
shows  that  in  the  reasonable  exercise  of  this  right  he  inflicted  bodily 
injury  upon  his  assailant  he  is  justified  or  excusable.-^    This  right 

« Anderson     v.     State.     3     Head  '^  State  v.  Alford,  68  N.  Car.  322; 

(Tenn.)    454;    Johnson   v.    State,    2  State  v.   Pendergrass,   2   Dev.   &   B. 

Humph.   (Tenn.)   282;   State  v.  Pen-  (N.   Car.)    365;    State   v.    Jones,    95 

dergrass,  2  Dev.  &  B.  (N.  Car.)  365;  N.  Car.  588;    State  v.  Stafford,  113 

State  V.  Harris,  63  N.  Car.  1;   Com-  N.  Car.  635.  18  S.  E.  256. 

monwealth     v.     Randall,     4     Gray  "Miller  v.  State.  74  Ind.  1;   Pres- 

(Mass.)    36.  ser  V.  State,  77  Ind.  274;  McDermott 

«=■  Turner  v.  State,  35  Tex.  Cr.  App.  v.  State,  89  Ind.  187;   Mannahan  v. 

369,  33  S.  W.  972.  State,    18    Ind.    App.    297.    47    N.    E. 


135  SELF-DEFENSE.  [§    2848. 

of  self-defense  is  given  to  one  who  is  himself  without  fault,  and  in 
order  to  invoke  the  benefit  of  the  rule  he  must  show  that  he  was 
without  fault.-^  In  criminal  cases  proof  of  the  facts  constituting  self- 
defense  or  all  matters  which  justify  or  even  go  in  mitigation  of  the 
assault  and  battery  charged  may  generally  be  given  in  evidence  under 
the  plea  of  not  guilty.^^ 

§  2848.  Self-defense — Excessive  force. — This  right  to  invoke  the 
rule  of  self-defense  is  subject  to  another  exception.  The  term  itself 
implies  the  defense  of  one's  person  from  a  contemplated  or  attempted 
assault  and  tliis  is  generally  the  limit  of  the  right ;  the  rule  cannot  be 
extended  beyond  the  natural  and  inherent  right  that  a  person  has  to 
protect  himself  from  harm  or  violence.  For  these  reasons  a  person 
when  assaulted  cannot,  under  his  pretended  right  of  self-defense,  use 
any  more  force  than  is  reasonably  necessary  to  protect  himself.  He 
will  not  be  permitted  under  the  guise  of  self-defense  to  administer 
punishment  to  his  assailant;  to  claim  the  benefit  of  this  right  he  must 
content  himself  with  having  successfully  repelled  his  adversary.  And 
if  the  proof  shows  that  he  did  more,  or  if  he  followed  up  his  assailant 
and  administered  apparently  needed  punishment,  or  if  it  is  shown 
that  he  used  excessive  force  under  all  the  circumstances  he  will  be 
criminally  liable  for  assault  and  battery.*^  The  law  is  not  over  pre- 
cise, however,  in  the  application  of  tliis  rule  of  excessive  force  on  the 
part  of  the  person  assaulted.  It  permits  him  to  act  upon  appearances 
and  indulges  the  inferences  that  he  may  draw  from  the  acts,  conduct 
and  appearance  of  his  assailant  at  the  time.  Hence,  if  the  proof  shows 
that  under  all  the  circumstances  the  means  used  and  the  manner  of 
the  use   in   resisting  were  not  disproportioned   to   the   character   of 

1076;    State    v.    Hays,    23    Mo.    287;  Gizler  v.  Witzel,  82  111.  322;  Illinois 

Hor.  &  Th.  Cas.  492.  &c.    Co.    v.    Waznius,    101    111.    App. 

"^Kingen    v.    State,    45    Ind.    518;  535;   Steiner  v.  People,  187  111.  244. 

Wall  v.  State,  51  Ind.  453;   Runyan  58  N.  E.  383;   Adams  v.  Waggoner, 

V.  State,  57  Ind.  80;  Presser  v.  State,  33   Ind.   531,   533;    Dole  v.   Erskine, 

77  Ind.  274;   Story  v.  State,  99  Ind.  35  N.  H.  503;   Castner  v.  Sliker,  33 

413.  N.  J.  L.  95,  99;    Stockton  v.   State, 

"People  v.  Shanley,  30  Misc.    (N.  25  Tex.  772,  776;   Chambers  v.  Por- 

Y.)    290,  63  N.  Y.   S.   389;    State  v.  ter,    5    Coldw.     (Tenn.)     273,    282; 

Elliott,  11  N.  H.  540.  State  v.  Wood,  1  Bay  (S.  Car.)  351; 

*»  Mitchell   v.    State.    41    Ga.    537;  Commonwealth  v.   Bush,   112   Mass. 

Berry  v.   State,   105   Ga.   683,  31   S.  280;    State    v.    Gibson,    10    Ired.    L. 

E.  592;  Woodman  v.  Howell,  45  111.  (N.  Car.)    214. 
367;  Ogden  v.  Claycomh,  52  111.  365; 


§i§  2849-2851.]  assault  and  battery.  136 

the  assault  made  or  attempted,  he  will  be  excusable.*®  This  rule 
on  the  question  of  the  use  of  excessive  force  has  been  aptly  stated  by 
the  New  Hampshire  Supreme  Court  thus:  "The  self-defense  must 
be  regulated  by  the  nature,  degree  and  design  of  the  attack,  and  the 
repelling  force  must  go  no  farther  than  is  necessary  to  prevent  the 
mischief  intended  by  the  aggressor."^" 

§  2849.  Self-defense — Duty  of  assailant. — The  right  of  self-de- 
fense may  be  extended  to  the  original  assailant  under  certain  circum- 
stances. But  before  this  can  be  done  the  party  who  wrongfully  and 
unlawfully  begins  a  contest  must  place  himself  clearly  in  the  right. 
Under  such  circumstances  to  invoke  the  right  to  the  rule  of  self-de- 
fense he  must  prove  that  after  having  begun  the  assault  he  has  made 
an  effort  in  good  faith  to  withdraw. ^^  In  order  to  invoke  this  rule 
the  person  who  wrongfully  or  unlawfully  provokes  a  quarrel  and  i& 
himself  the  aggressor  and  enters  upon  a  personal  combat,  when  as- 
saulted or  repelled  by  his  adversary,  cannot  justify  the  use  of  a 
dangerous  or  deadly  weapon  without  first  showing  that  he  withdrew 
or  attempted  to  withdraw  in  good  faith  from  the  contest.®^ 

§  2850.  Defense  of  family. — This  right  of  self-defense  is  not 
limited  to  the  person  assailed.  The  right  extends  equally  to  the  de- 
fense of  a  man's  family,  his  possession  or  his  property.  In  one  case 
it  was  said :  "The  defense  of  one's  self,  husband,  wife,  child,  parent, 
mother  or  servant  is,  under  certain  circumstances,  a  natural  right."®^ 

§  2851.  Defense  of  possession. — This  right  to  defend  is  granted  to 
the  person  in  the  mere  possession  of  property,  and  the  rule  is  that 
the  bare  possessor  of  a  thing  has  a  right  forcibly  to  repel  any  forcible 
attempts  to  take  it  from  him.  He  has  the  right  to  use  as  much  force 
as  is  necessary  to  prevent  his  exclusion  from  the  use  of  the  property 
or  its  forcible  or  illegal  removal.^* 

''Pease  v.  State,  13  Tex.  App.  18;  Stoffer  v.  State,  15  Ohio  St.  47,  Hor. 

State  V.  Hill,  4  Dev.  &  B.  (N.  Car.)  &  Th.  Cas.  213. 

491,  Hor.  &  Th.  Cas.  199.  '•^  Presser    v.    State,    77    Ind.    274; 

""State  v.  Elliott.  11  N.  H.  540.  Barnett  v.  State,  100  Ind.  171. 

"  Hittner  V.  State,  19  Ind.  48,  Hor.  '^  State   v.    Elliot,    11    N.    H.    540; 

&  Th.  Cas.  236;  Presser  v.  State,  77  Curtis  v.   Hubbard,  1  Hill    (N.   Y.) 

Ind.  274;  Story  v.  State,  99  Ind.  413;  336;  see.  Vol.  Ill,  §  1701. 

Commonwealth  v.  Riley,  Hor.  &  Th.  ="' Roach  v.  People,  77  111.  25;  Com- 

Cas.  155;   State  v.  Hill,  4  Dev.  &  B.  monwealth     v.     Kennard,     8     Pick. 

(N.  Car.)  491,  Hor.  &  Th.  Cas.  199;  (Mass.)      133;      Commonwealth     v. 


137    DEFENSE  OF  PROPERTY — DEGREE  OF  FORCE.    [§§  2852-2854. 

§  2852.  Defense  of  property. — For  the  same  reasons  a  person  has 
a  riglit  to  defend  liis  property  and  the  same  rules  govern  as  to  the  de- 
gree of  force.  An  intruder  may  be  ordered  out  of  the  house  or  off  of 
the  premises  of  another;  but  the  owner  has  no  right  to  expel  him  by 
force  until  gentler  means  have  failed.  But  if  the  intruder  fails  or 
refuses  to  leave,  the  owner  of  the  property  or  premises  may  then  use 
as  much  force  as  is  requisite  for  the  purpose  of  ejecting  him.  But, 
as  in  other  eases,  no  greater  force  than  is  necessary  to  expel  the  in- 
truder can  be  employed.^''  Where  the  defense  is  a  justification  on  the 
ground  of  possession  or  ownership,  it  is  proper  for  the  defendant  to 
prove  that  he  was  in  the  possession  of  the  property,  or  that  he  owned 
the  premises  on  which  the  alleged  assault  and  battery  were  committed, 
and  that  he  did  the  acts  complained  of  in  defense  of  the  possession 
of  such  property  or  premises.^*^  But  it  must  be  remembered  that  the 
proof  must  show  possession ;  and  it  has  been  held  that  the  owner 
would  not  be  justified  in  committing  an  assault  and  battery  for  the 
purpose  of  reducing  his  right  of  ownership  to  actual  possession. ^^ 

§  2853.  Degree  of  force. — The  rule  governing  the  degree  of  force 
to  be  used  applies  equally  to  persons  and  property.  The  rule  has  been 
thus  stated :  "The  right  to  property  of  all  kinds  may  be  forcibly  de- 
fended when  it  is  forcibly  attacked,  and  that  the  degree  of  force  to 
be  used  is  to  be  measured  not  by  the  value  of  the  article,  but  by  the 
degree  of  force  used  in  the  attaok."^^  As  stated  in  an  early  California 
case:  "The  owner  of  the  property  and  in  possession  of  the  same  had 
a  right  to  use  such  force  as  was  necessary  to  prevent  a  forcible  tres- 
pass/'»» 

§  2854.  Degree  of  force — Distinction. — There  seems  to  be  a  dis- 
tinction in  the  degree  of  force  used   for  the  purpose  of  protecting 

Power,  7   Mete.    (Mass.)    596;    Com-  590;   People  v.  Smith,  24  Barb.    (N. 

monwealth     v.     Crotty,     10     Allen  Y.)    16;    Corey   v.    People,   45    Barb. 

(Mass.)    403;     People    v.    Payne,    8  (N.    Y.)     262;    Weaver    v.    Bush,    S 

Cal.    341;    Harrington    v.    People,    6  Term  R.  78;  see,  Vol.  Ill,  §  1699. 

Barb.    (N.  Y.)    607;    State  v.  Miller,  «•  Harrington    v.    People,    6    Barb. 

12  Vt.  437.  (N.  Y.)   607. 

">1  Wharton  Cr.  Law,  §§  100,  506;  '•^Parsons  v.  Brown,  15  Barb.   (N. 

Commonwealth    v.    Clark,    2    Mete.  Y.)   590. 

(Mass.)  23;  Commonwealth  v.  Pow-  **  1  Wharton  Cr.  Law.  §  100. 

er.   7   Mete.    (Mass.)    596;    Common-  »» People  v.  Payne,  8  Cal.  341;  Peo- 

wealth  v.  Dougherty,  107  Mass.  243;  pie  v.  Flanagan,  60  Cal.  2;  Johnson 

Parsons  v.  Brown,  15  Barb.  (N.  Y.)  v.  Patterson„14  Conn.  1. 


■§    2855.]  ASSAULT    AND    BATTERY.  138 

property  in  the  first  instance  depending  on  tlie  nature  and  character 
of  the  attack.  The  rule  on  this  subject  is  stated  thus:  "Where  an 
intrusion  upon  property  is  made  without  force,  it  can  only  be  re- 
pelled on  notice  to  the  intruder  to  leave,  and  gently  laying  hands  on 
him  to  compel  it.  Where  the  entry  is  by  actual  force,  force  may  be 
repelled  by  force,  but  too  great  care  and  caution  cannot  be  used  lest 
the  individual  should  transcend  the  limited  power  necessarily  placed 
in  his  hands  for  the  protection  of  his  rights.' 


WlOO 


§  2855.  Self-defense — Burden  of  proof. — The  burden  in  criminal 
cases  as  a  rule  is  on  the  state  or  the  government  to  prove  the  com- 
mission of  the  offense  by  the  accused  beyond  a  reasonable  doubt.  And 
this  rule  applies  to  misdemeanors  as  well  as  to  felonies.  But  there  is 
a  conflict  in  the  decided  cases  as  to  the  burden  of  proof  in  criminal 
cases  where  the  question  of  justification  or  self-defense  is  interposed. 
One  class  of  cases  holds  that  it  is  only  incumbent  upon  the  state  to 
prove  the  assault  and  battery  or  the  violence  inflicted  on  the  person 
and  that  it  is  not  necessary  to  prove  that  the  act  was  not  justified: 
that  this  is  sufficient  prima  facie  proof  of  guilt  even  beyond  a  reason- 
able doubt.  This  prima  facie  case  on  the  part  of  the  state  may  be 
overcome  by  proof  of  justification.  And  this  rule  seems  to  obtain 
whether  the  evidence  of  justification  is  connected  with  the  evidence 
for  the  prosecution,  or  whether  it  is  given  on  behalf  of  the  defend- 
ant.^''^ Another  class  of  cases  holds  that  it  is  neccessary  for  the  state 
to  prove  beyond  a  reasonable  doubt  not  only  the  fact  of  the  assault 
and  battery  but  the  additional  fact  that  it  was  unjustified.  One  rea- 
son given  for  this  rule  is,  if  the  act  was  justifiable  it  is  not  an  assault 
and  battery.  The  rule  seems  to  be  that  if  the  evidence  on  the  ques- 
tion of  justification  leaves  in  doubt  one  of  the  essential  elements  of 
the  offense,  it  has  failed  to  establish  beyond  a  reasonable  doubt  that 
the  act  was  wrongful  and  unjustifiable,  and  the  defendant  is  entitled 
to  the  benefit  of  such  doubt. ^°^ 

'*>  State  v.  Elliot  11  N.  H.  540;  don,  88  Cal.  422,  26  Pac.  502;  Saw- 
State  v.  Woodward,  50  N.  H.  527;  yer  v.  People,  91  N.  Y.  667;  People 
Scribner  v.  Beach,  4  Den.  (N.  Y.)  v.  McCarthy,  110  N.  Y.  309,  18  N. 
448;  State  v.  Davis,  80  N.  Car.  351;  E.  128;  People  v.  Rodrigo,  69  Cal. 
State  v.  Taylor,  82  N.  Car.  554;  601,  11  Pac.  481;  State  v.  Shea,  104 
TuUay  v.  Reed,  1  Car.  &  P.  6;  Green  Iowa  724,  74  N.  W.  687;  see.  People 
T.  Goddard,  2  Salk.  641.  v.    Shanley,    30    Misc.    (N.   Y.)    290, 

"'  People  V.  Rodrigo,  69  Cal.  601,  62  N.  Y.  S.  389. 
11   Pac.    481;    People  v.   Knapp,    71         ^"^  Commonwealth     v.     McKie,      1 

Cal.  1,  11  Pac.  793;   People  v.  Gor-  Gray   (Mass.)    61;    State  v.  Morphy, 


139  RETAKIXG  PROPERTY.         [§  285(),  "^S-jT. 

§  2856.  Retaking  property — No  justification. — The  courts  arc  not 
agreed  in  hokling  that  an  assault  and  buttery  is  justifiable  where  the 
proof  shows  that  the  owner  was  attempting  to  take  his  property  from 
the  possession  of  another  and  the  battery  was  committed  by  liim  in 
so  doing.  The  rule  established  by  some  cases  is  that  an  assault  and 
battery  cannot  be  justified,  excused  or  extenuated  where  tlie  proof 
shows  that  such  assault  and  battery  was  committed  by  the  owner  of 
property  in  an  attempt  to  take  it  from  a  third  person. ^"^^  The  rule 
established  in  IMassachusetts  is  that  one  whose  property  is  wrongfully 
taken  by  another  may  thereupon  retake  it,  but  he  must  use  no  more 
than  reasonable  force  to  do  so ;  and  the  question  of  whether  or  not  the 
force  was  excessive  is  for  the  jury.'^"'' 

§  2857.  Retaking  property — ^When  justifiable.— A  class  of  cases 
seems  to  hold  that  when  one's  property  is  wrongfully  taken  from  him, 
he  has  the  right  to  follow  immediately  and  retake  it ;  but  he  must  use 
no  more  force  than  is  reasonably  necessary  under  the  circumstances. 
The  rule  on  this  branch  of  the  subject  is  thus  stated  by  the  Supreme 
Court  of  New  Hampshire:  "A  power  of  retaking  property,  under 
certain  circumstances,  is  necessarily  incident  to  the  protection  of  the 
above  rights.  But  this  right  of  recapture  of  property  is  far  more  lim- 
ited than  its  defense  when  in  our  actual  possession.  Where  the  prop- 
erty is  immediately  followed  for  recapture  from  the  individual  tak- 
ing it,  the  same  rule  for  the  most  part  holds  as  in  the  defense  of 
property  in  possession.  The  controversy  is  immediately  consequent 
upon  the  act  of  taking,  and  the  law  arising  upon  it  is  the  same.  Gen- 
erally the  only  points  to  be  determined  in  such  case  are,  whether  the 
pursuer  has  an  undoubted  right  of  property,  and  of  immediate  pos- 
session, and  whether  the  individual  removing  it  is  a  mere  wrong- 

33    Iowa   270;    State    v.    Porter,    34  Y.)    262;    Scribner  v.  Beach.  4  Den. 

Iowa  131;  State  v.  Fowler,  52  Iowa  (N.   Y.)    448;    People  v.   Cooper,   13 

103,  2  N.  W.  983;  State  v.  Cross,  68  Wend.    (N.  Y.)   379;    State  v.  Black, 

Iowa    180,    26    N.    W.    62;    State    v.  109  N.  Car.  856,  13  S.  E.  877;    Ter- 

Dillon,  74  Iowa  653,  38  N.  W.  525;  rell  v.  State,  37  Tex.  442. 

State  v.   Donahoe,   78   Iowa  486,   42  "'Commonwealth  v.  Donahue,  148 

N.  W.  297;    State  v.  Fowler,  2   Ky.  Mass.   529,  20  N.  E.  171;    Common- 

L.  R.  150;   Commonwealth  v.  Clark,  wealth    v.    Lynn,    123    Mass.    218; 

2  Mete.   (Mass.)    23.  State  v.  Dooley,  121   Mo.  591,  26  S. 

"^Hendrix  v.  State.  50  Ala.  148;  W.  558;   Anderson  v.  State.  6  Baxt. 

Parsons  v.  Brown.  15  Barb.  (N.  Y.)  (Tenn.)    60S;    Cox    v.    State,    (Tex. 

590;   Corey  v.  People,  45  Barb.    (N.  Cr.  App.),  34  S.  W.  754. 


ASSAULT  AND  BATTERY.  140 

doer.  In  such  case  a  recapture  of  the  property  is  permitted  by  the 
individual,  when  made  only  with  the  reasonable  exercise  of  power 
which  the  occasion  demands,  and  when  limited  and  controlled  by  the 
urgency  of  the  necessity  compelling  to  this  course."^*^^ 

*•»  State  V.  Elliot.   11  N.   H.  540;     v.  Higgs,  10  C.  B.  N.  S.  713;  Bonner 
Sterling  v.  Warden,  51  N.  H.  217:     v.  State,  97  Ala.  47,  12  So.  408. 
Mills  V.  Wooters,  59  111.  234;  Blades 


CHAPTER  CXXXIV. 

BIGAMY. 

Sec.  Sec. 

2858.  Scope  of  Chapter.  2867.  First  husband  or  wife  living 

2859.  Definition.  — Presumptions. 

2860.  Jurisdiction — Proof.  2868.  Absence  of  husband  or  wife — 

2861.  Validity  of  first  marriage.  Effect  and  burden. 

2862.  First     marriage — Method  of     2869.  First  husband  or  wife  living 

proof.  — Distinction  in  statutes. 

2863.  First  marriage — Proof  by  ad-     2870.  Polygamy — Proof    under     Ed- 

missions,  mund's  law. 

2864.  Second     marriage — Proof     es-     2871.  Second  marriage  in  good  faith 

tablishes    offense.  — No  defense. 

2865.  Second     marriage  —  Presump-     2872.  Second  marriage  in  good  faith 

tion.  — Defense. 

2866.  First  husband  or  wife  living     2873.  Divorce  as  a  defense — Burden 

— Proof.  2874.  First    and    second     wives    as 

witnesses. 

§  2858.  Scope  of  chapter. — Bigamy  is  made  a  crime  by  statute  in 
perhaps  every  state  of  the  United  States.  There  is  great  unanimity 
in  the  several  statutes  as  to  the  crime  itself,  but  some  differences  in 
the  statutes  with  reference  to  subsequent  cohabitation  and  other  at- 
tending matters.  It  is  not  within  the  scope  of  this  work,  nor  is  it  at 
all  practical  to  supply  rules  of  proof  adapted  to  the  various  statutes 
of  the  several  states.  The  purpose  here  is  to  give  the  general  rules 
of  proof  that  may  apply  to  the  statutes  generally. 

§  2859.  Definition. — For  reasons  suggested  in  the  preceding  sec- 
tion it  is  not  possible  to  give  a  definition  of  bigamy  that  will  fully 
conform  to  the  various  statutes  of  the  several  states;  but  the  essen- 
tial elements  of  the  crime  are  so  generally  recognized  that  the  com- 
mon definition  is  practically  of  universal  application.  The  prevailing 
idea  in  the  definition  given  by  ]\Ir.  Blackstone  is  very  generally  ad- 
hered to  when  he  defines  bigamy  as  that  "which  properly  signifies 
being  twice  married,  but  is  more  justly  denominated  })olygamy,  or 
having  a  plurality  of  wives  at  once.   Such  second  marriage,  living  the 

141 


§    28G0.]  BIGAMY.  143 

former  husband  or  wife,  is  simply  void,  and  the  mere  nullity,  by  the 
ecclesiastical  law  of  England;  and  yet  the  legislature  has  thought 
it  just  to  make  it  a  felony,  by  reason  of  its  being  so  great  a  violation 
of  the  public  economy  and  decency  of  a  well-ordered  state."^  A 
writer  on  criminal  law  says  of  it :  "Bigamy,  in  its  proper  significa- 
tion, is  said  to  mean  only  being  twice  married,  and  not  having  a 
plurality  of  wives  at  once."-  As  defined  by  some  statutes,  "any  per- 
son being  married  who,  during  the  life  of  the  former  husband  or 
wife,  shall  marry  another  person  in  this  state,  or,  if  the  marriage  with 
such  other  person  take  place  out  of  the  state,  shall  thereafter  co- 
habit with  such  other  person  in  this  state,"  shall  be  deemed  guilty  of 
bigamy,  etc.^  Other  statutes  say  of  it:  "If  any  person,  who  has  a 
former  husband  or  wife  living,  shall  marry  another  person  or  shall 
continue  to  cohabit  with  such  second  husband  or  wife,  he  or  she 
shall,  etc.,  be  deemed  guilty  of  polygamy,"  etc.*  The  Arkansas  Su- 
preme Court  briefly  says  of  bigamy :  "It  is  the  marrying,  by  a  per- 
son who  has  a  husband  or  wife  living,  that  constitutes  the  offense 
■under  the  statute."^  In  defining  bigamy  the  Supreme  Court  of 
Pennsylvania  say:  "Polygamy  is  the  proper  term  to  describe  the 
offense  we  have  been  discussing;  but  by  long  usage  bigamy  has  come 
to  be  understood  in  law  to  be  the  state  of  a  man  who  has  two 
wives,  or  a  woman  who  has  two  husbands  at  the  same  time."* 
Some  statutes  have  another  and  very  important  element  where  they 
provide  that  "the  offense  of  bigamy  consists  in  the  wilful  contracting 
a  second  marriage,  knowing  the  former  marriage  to  be  subsisting."^ 

§  2860.  Jurisdiction — Proof. — It  is  a  fundamental  law  of  proced- 
ure in  criminal  cases  that  the  proof  must  bring  the  alleged  crime 
within  the  jurisdiction  of  the  court.  Under  this  rule  in  prosecutions 
for  bigamy  where  the  statutory  offense  consists  in  marrying  another 
person  while  a  former  husband  or  wife  is  living,  the  evidence  must 

*  2  Blackstone  Coram.,  163.  Halbrook  v.  State.  34  Ark.  511 ; 
''I  Russell  Crimes,  186,  note  a.  State  v.  Hayes,  10  La.  352;  Niece 
=  3  Wharton  Cr.  Law,  §  2623.               v.    Territory,    9    Okla.    535,    60    Pac. 

*  Finney  v.  State,  3  Head  (Tenn.)  300;  Commonwealth  v.  Grise,  11 
544;  Johnson  v.  Commonwealth,  86  Phila.  (Pa.)  655;  Murphy  v.  Ram- 
Ky.  122,  5  S.  W.  365;  Dotson  v.  sey,  114  U.  S.  15,  5  Sup.  Ct.  747;  2 
State,  62  Ala.  141;  State  v.  Nadal,  Wharton  Cr.  Law.  §  1682;  Bishop 
69  Iowa  478,  29  N.  W.  451;   State  v.  Stat.  Crimes,  §  577. 

Johnson,  12  Minn.  476,  93  Am.  Dec  « Gise   v.    Commonwealth,    81    Pa. 

252;    Commonwealth   v.    Lucas,    158  St.  428,  2  Wkly.  No.  Cas.  589. 

Mass.  81.  32  N.  E.  1033.  ^  Beggs  v.   State,   55  Ala.   108. 
^Scoggins  V.   State,  32  Ark.  205; 


143  VALIDITY    OF    FIRST    MARRIAGE.  [?    2?^()1. 

show,  unless  otherwise  provided  by  statute,  that  the  soeond  marriage 
ceremony  was  performed  within  the  county  where  the  indictment  was 
returned.  Subsequent  cohabitation  in  the  same  county  or  in  another 
jurisdiction  may  be  made  an  offense  by  statute,  but  it  is  not  bigamy. 
"The  criminal  second  marriage  is  an  indispensable  element  of  the 
statutory  offense,  and  must  be  averred  and  proved."^ 

§  2861.  Validity  of  first  marrage. — In  prosecution  for  bigamy 
the  state  must  prove  both  a  prior  and  subsequent  marriage  beyond 
a  reasonable  doubt.  The  one  fact  that  makes  the  second  marriage 
criminal  is  that  of  an  existing  prior  marriage  which  has  not  been  dis- 
solved either  by  death  or  divorce.  The  first  marriage  must  not  only 
be  proved,  but  it  must  be  made  to  appear  that  it  was  valid  according 
to  the  laws  of  the  state  or  country  where  celebrated."  This  general 
rule  was  more  fully  stated  by  the  Supreme  Court  of  Illinois:  "To 
constitute  the  offense  charged  in  this  indictment  it  was  incumbent 
on  the  prosecution  to  show,  against  the  defendant,  two  successive 
marriages, — one  legal  and  innocent,  the  other  penal.  Both  must  be 
actual.  The  first  marriage  must  be  valid  and  binding  and  a  marriage 
in  fact.  Marriage  with  capacity  and  consent,  proved  by  direct  testi- 
mony, as  by  the  evidence  of  witnesses  who  saw  and  heard  the  mar- 
riage celebration  performed  between  the  parties,  or  record  evidence, 
with  identification,  would  be  evidence  of  actual  marriage  in  fact."^" 
If  the  first  marriage  is  illegal  or  void  or  has  been  dissolved  for  any 
reason  there  can  be  no  conviction  for  bigamy.^ ^    A  marriage  void  by 

»Beggs  V.  State,  55  Ala.  108;  Wil-  Weinberg    v.    State,    25    Wis.    370; 

Hams  V.  State,  44  Ala.  24;    Brewer  Bishop  Stat.  Crimes.  §  609. 
V.  State,  59  Ala.  101;  Walls  v.  State,         '"  Hiler  v.  People,  156  111.  511,  41 

32   Ark.   565;    State  v.   Johnson,   12  N.  E.   181;    Cartwright  v.   McGown, 

Minn.  476;   Watson,  In  re,  19  R.  I.  121  111.  388,  12  N.  E.  737;    Hebhle- 

342,  33  Atl.  873;   Finney  v.  State,  3  thwaite   v.    Hepworth,    98    111.    126; 

Head      (Tenn.)      544;      Keneval     v.  Port  v.  Port,  70  111.  484;  Harmon  v. 

State,  107  Tenn.  581,  64  S.  W.  897;  Harmon,  16  111.  85;    Lowery  v.  Peo- 

People  v.  Mosher,  2  Park.  Cr.  Cas.  pie,  172  111.  466,  50  N.  E.  165;    Ly- 

(N.  Y.)    195;    United   States  v.  Jer-  man   v.   People,   198   111.    544,  64   N. 

negan,  4  Cranch  (U.  S.)  1;  State  v.  E.    974;    Lyman    v.    People,    98    111. 

Cutshall,  110  N.  Car.  538,  15  S.  E.  App.   386;    State  v.   Winkley,  14  N. 

261;    State  v.   Palmer,   18   Vt.   570;  H.  480;   State  v.  Davis,  109  N.  Car. 

Bishop  Stat.  Crimes,  §§  587,  588.  780;   14  S.  E.  55;    Hayes  v.  People. 

« Parker  v.  State,  77  Ala.  47;   Mc-  25  N.  Y.  390. 
Deed  v.  McDeed,  67  111.  545;  Canale         "  Halbrook  v.  States,  34  Ark.  511; 

V.  People,  177  111.  219,  52  N.  E.  310;  State  v.   Goodrich,   14   W.  Va.   834; 

Hull    v.    State,    7    Tex.    App.    593;  3  Greenleaf  Ev.,  §  208. 


§§  2862,  2863.]  bigamy.  144 

reason  of  non-age  of  the  parties  and  not  confirmed  by  cohabitation 
after  arriving  at  the  statutory  age  has  been  held  to  be  insufficient  to 
establish  a  subsequent  marriage  bigamous.^ = 

§2862.  First  marriage — Method  of  proof. — The  rules  governing 
the  proof  of  such  first  marriage,  generally,  are  practically  the  same 
as  those  previously  given  in  prosecutions  for  adultery .^^  It  has  been 
held  that  "when  the  celebration  of  a  marriage  is  once  shown,  the  con- 
tract of  marriage,  the  capacity  of  the  parties,  and  every  other  fact 
necessary  to  the  validity  of  a  marriage  will  be  presumed,  until  the 
contrary  is  shown." ^*  So  it  has  been  held  that  the  record  of  a  decree 
granting  a  divorce  from  the  first  or  lawful  wife  after  the  alleged  sec- 
ond marriage,  with  evidence  to  identify  the  parties,  is  competent  as 
proof  of  the  marriage.^^  So  the  silence  of  the  accused  in  the  face  of 
a  charge  that  his  first  wife  was  still  living  was  held  to  be  in  the  nature 
of  an  admission  both  of  the  former  marriage  and  the  fact  of  his 
knowledge  or  belief  that  the  lawful  wife  was  living. ^«  Where  a  mar- 
riage took  place  in  a  foreign  country,  followed  by  cohabitation,  in 
the  absence  of  proof  of  the  laws  of  such  country  relating  to  the  sol- 
emnization of  marriages,  it  has  been  held  that  such  marriages  will  be 
presumed  to  be  legal.^^ 

§  2863.  First  marriage — Proof  by  admissions. — ^The  courts  are 
not  unanimous  on  the  rule  as  to  whether  or  not  in  prosecutions  for 
bigamv,  as  in  prosecutions  for  adultery,^^  the  fact  of  the  marriage  can 
,  be  sufficiently  established  by  proof  of  admissions  of  the  accused.  But 
the  great  weight  of  authority  and  the  better  reasoning  are  in  favor 
of  the  proposition  that  the  fact  of  the  marriage  may  be  established 
by  proof  of  such  admissions.  Some  cases  justify  this  holding  on  the 
theory  that  these  admissions  are  equivalent  to  the  proof  by  a  party 

^^Shafher  v.  State,  20  Ohio  1;  but  Ferrie,  26  Barb.  (N.  Y.)   177;  State 

see,  People  v.  Slack,  15  Mich.  193;  v.    Kean,    10    N.    H.    347;    State   v. 

State   v.   Cone,   86  Wis.   498,   57   N.  Clark,  54  N.  H.  456. 

W.  50.  "Halbrook  v.  State,  34  Ark.  511; 

"See     Vol.      IV,     §§     2799-2803;  State  v.  Ashley,  37  Ark.  403. 

Bishop  Stat.  Crimes,  §  610.  '"  State  v.  Plym,  43  Minn.  385,  45 

"Cartwright  v.  McGown,  121  111.  N.  W.  848. 

388,  12  N.  E.  737;  Barber  v.  People,  "Commonwealth   v.   Kenney,    120 

203  111.  543,  68  N.  E.  93;   Strode  v.  Mass.  387;   but  see.  People  v.  Lam- 

Magowan,  2  Bush    (Ky.)    621;    Peo-  bert,  5  Mich.  349. 

pie  v.  Calder,  30  Mich.  85;   Fleming  ^  See,  Vol.  IV,  §  2802. 
V.  People,  27  N.  Y.  329;   Caujolle  v. 


145 


PROOF   OF   FIRST   MARRIAGE   BY   ADMISSIONS.  [§    28G3. 


who  was  present  and  witnessed  the  cereraon}-.  Other  cases  yield  as- 
sent to  the  rule  by  holding  that  proof  of  such  admissions  in  connec- 
tion with  proof  of  other  circumstances  is  sufficient;  while  other  cases 
assert  that  in  the  absence  of  local  laws  describing  certain  formalities 
and  ceremonies  to  validate  a  marriage  the  fact  may  be  proved  by  the 
admissions  of  the  party. ^^  In  an  earlier  case  the  Alabama  court  held 
that  in  such  prosecutions  the  fact  of  marriage  may  be  proved  by  co- 
habitation and  confessions  of  the  accused.  And  it  was  held  that  if 
the  proof  be  full  and  satisfactory  it  was  unnecessary  to  produce  either 
the  record,  or  the  testimony  of  witnesses  who  were  present.^"  By 
the  common  law  consent  followed  by  cohabitation  constituted  a  valid 
marriage.  Hence  the  rule  is  established  that  in  states  or  countries 
where  the  common  law  is  presumed  to  exist  proof  of  admission  of  a 
marriage  is  the  proof  of  a  fact  which  may  rest  in  parol  only,  and  such 
admissions  are  competent  evidence  of  the  fact.  In  any  event  the 
admissions  must  be  sufficient  to  prove  the  fact  of  a  marriage  beyond 


'» Williams  v.  State,  54  Ala.  131: 
Parker  v.  State,  77  Ala.  47;  United 
States  v.  Tenney,  2  Ariz.  127,  11  Pac. 
472;  Halbrook  v.  State,  34  Ark.  511; 
Cook  v.  State,  11  Ga.  53;  Murphy  v. 
State,  50  Ga.  150;  Arnold  v.  State, 
53  Ga.  574;  Dale  v.  State,  88  Ga. 
553,  15  S.  E.  287;  McSein  v.  State, 
120  Ga.  175,  47  S.  E.  544;  Jackson  v. 
People.  2  Scam.  (111.)  231;  Tucker 
V.  People,  122  111.  583,  13  N.  E.  809; 
State  V.  Seals,  16  Ind.  352;  Squire 
V.  State,  46  Ind.  459;  State  v.  Nadal, 
69  Iowa  478,  29  N.  W.  451;  State  v. 
Hughes,  35  Kans.  626,  12  Pac.  28; 
Commonwealth  v.  Jackson,  11  Bush 
(Ky.)  679;  Cay  ford's  Case,  7  Me. 
57;  Ham's  Case,  11  Me.  391;  State 
V.  Hodgskins,  19  Me.  155;  State  v. 
Libby,  44  Me.  469;  Commonwealth 
V.  Holt,  121  Mass.  61;  Common- 
wealth V.  Dill,  156  Mass.  226,  30  N. 
E.  1016;  Commonwealth  v.  Hayden, 
163  Mass.  453,  40  N.  E.  846;  People 
V.  Perriman,  72  Mich.  184,  40  N.  W. 
425;  People  v.  Imes,  110  Mich.  250, 
68  N.  W.  157;  State  v.  Armington, 
25  Minn.  29;  State  v.  Plym,  43 
Minn.   385,  45   N.  W.   848;    State  v. 

Vol.  4  Elliott  Ev. — 10 


McDonald,  25  Mo.  176;  State  v. 
Cooper,  103  Mo.  266,  15  S.  W.  327; 
State  V.  Clark,  54  N.  H.  456;  State 
v.  Wylde,  110  N.  Car.  500,  15  S.  E. 
5;  Wolverton  v.  State,  16  Ohio  173; 
Stanglein  v.  State,  17  Ohio  St.  453; 
Forney  v.  Hallacher,  8  S.  &  R.  (Pa.) 
159;  Greenwalt  v.  McEnelley,  85  Pa. 
St.  352;  Commonwealth  v.  Henning, 
10  Phila.  (Pa.)  209;  Commonwealth 
V.  Murtagh,  1  Ashm.  (Pa.)  272; 
State  V.  Medbury,  8  R.  I.  543;  State 
V.  Gallagher,  20  R.  I.  266,  38  Atl. 
655;  State  v.  Britton,  4  McCord  (S. 
Car.)  256;  State  v.  Hilton,  3  Rich. 
L.  (S.  Car.)  434;  Bashaw  v.  State, 
1  Yerg.  (Tenn.)  176;  Dumas  v. 
State,  14  Tex.  App.  464;  State  v. 
Abbey,  29  Vt.  60;  Warner  v.  Com- 
monwealth, 2  Va.  Cas.  95;  Oneale 
V.  Commonwealth,  17  Gratt.  (Va.) 
582;  Bird  v.  Commonwealth,  21 
Gratt.  (Va.)  800;  Womack  v.  Tank- 
ersley,  78  Va.  242;  State  v.  Good- 
rich, 14  W.  Va.  834;  Miles  v.  United 
States,  103  U.  S.  304;  Reg.  v.  Sim- 
monsto,  1  Car.  &  Kir.  164. 

=»Langtry  v.  State,  30  Ala.  536. 


s 


2864.]  BIGAMY,  146 


a  reasonable  doubt. -^  But  another  class  of  cases  holds  that  evidence 
of  cohabitation,  reputation,  etc.,  is  not  admissible,  and  that  proof  of 
admissions  is  not  sufficient  to  establish  the  fact  of  a  prior  marriage, 
but  it  must  be  proved  by  direct  evidence.^^ 

§  2864.  Second  marriage — Proof  establishes  offense. — Under 
statutes  which  define  the  crime  by  simply  providing  in  substance  that 
any  person  who  is  now  married  shall  take  to  himself  or  herself  an- 
other husband  or  wife,  while  his  or  her  former  husband  or  wife  is 
still  alive,  it  is  only  necessary  to  prove  in  addition  to  the  first  mar- 
riage three  things:  (1)  That  the  accused  has  a  former  husband  or 
wife  living:  (2)  the  fact  of  the  second  marriage:  (3)  the  identity 
of  the  parties.  It  is  expressly  held  that  proof  of  subsequent  cohabi- 
tation is  not  required,  nor  is  it  necessary  to  show  the  consummation 
of  the  second  marriage  by  any  carnal  act.^^  Of  this  rule  the  Alabama 
court  say:  "Cohabitation,  consequent  on  the  marriage,  is  not  an  in- 
gredient of  the  offense.  It  is  complete,  when  the  second  marriage,  if 
valid,  would  be  complete  according  to  the  law  of  the  place  in  which 
it  is  formed.  Public  morals  are  violated,  public  policy  is  offended, 
and  an  illegal  contract  is  made,  when  the  rites  are  solemnized  ac- 
cording to  the  forms  of  law.  Then,  if  the  prior  marriage  did  not 
avoid,  the  relation  of  husband  and  wife  would  be  formed,  and  all  its  in- 
cidents would  attach.  It  is  the  vicious  contract,  the  violation  of  public 
morals  and  policy,  the  law  denounces  and  punishes.^'-*  It  is  no  de- 
fense, however,  to  prove  that  the  second  marriage  is  void  or  prohibited 
by  statute.    It  is  the  entering  into  the  void  or  bigamous  marriage 

==>  Williams  v.  State,  54  Ala.  131;  Weinberg  v.  State,  25  Wis.  370;  see, 

Parker  v.  State,  77  Ala.  47.  Hayes  v.  People,  25  N.  Y.  390;  Will- 

==  Clayton  v.  Wardell,  4  N.  Y.  230;  mett  v.  Harmer,  8  Car.  &  P.  695. 

Eisenlord   v.    Clum,   126    N.   Y.   552,  =^  Scoggins  v.  State,  32  Ark.  205; 

562,  27  N.  E.  1024;   People  v.  Hum-  Beggs  v.  State,  55  Ala.  108;  State  v. 

phrey,  7  Johns.   (N.  Y.)   314;   Gaha-  Patterson,  2  Ired.  L.  (N.  Car.)  346; 

gan  V.  People,  1  Park.  Cr.  Cas.    (N.  Nelms  v.  State,  84  Ga.  466,  10  S.  E. 

Y.)  378;  Clayton  v.  Wardell,  5  Barb.  1087;  Gise  v.  Commonwealth,  81  Pa. 

(N.    Y.)    214;    People    v.    Kelly,    37  St.  428,  2  Wkly.  No.  Cas.  589;  State 

Hun    (N.    Y.)    160;    Dann   v.    King-  v.   Johnson,    12   Minn.    476,   93   Am. 

dom  1  T.  &  C.   (N.  Y.)   492;  People  Dec.  252;   Reg.  v.  Bawm,  1  Cox  Cr. 

V.  Edwards,  25  N.  Y.  S.  480;    State  Cas.  33. 

V.    Roswell,    6   Conn.    446;    State   v.  =' Beggs    v.    State,    55    Ala.    108; 

Armstrong,    4    Minn.    335;    State   v.  State  v.  Smiley,  98  Mo.  605. 
Whaley,  10  Rich.  L.   (S.  Car.)   500; 


147  SECOND    MARRIAGE.  [§    28(irj. 

while  the  prior  valid  marriage  exists  that  constitutes  the  gist  of  tlie 
offense,^'^ 

§  2865.  Second  marriage — Presumption. — One  class  of  cases  holds 
that  every  presumption  must  be  indulged  in  favor  of  the  validity  of 
the  second  marriage ;  and  it  has  been  held  that  the  ordinary  presump- 
tion in  favor  of  the  continuance  of  human  life  should  not  in  this 
class  of  cases  outweigh  the  presumption  in  favor  of  the  innocence  of 
the  accused.  In  an  early  Illinois  case  it  was  said :  "^Yllen  it  is  shown 
that  a  marriage  has  been  consummated  in  accordance  with  the  forms 
of  the  law,  it  is  to  be  presumed  that  no  legal  impediments  existed 
to  their  entering  into  matrimonial  relations,  and  tlie  fact,  if  shown, 
that  either  or  both  of  the  parties  have  been  previously  married,  and, 
of  course,  at  a  former  time  having  a  husband  or  wife  living,  does  not 
destroy  the  prima  facie  legality  of  the  last  marriage.  The  natural 
inference  in  such  case  is,  that  tlie  former  marriage  has  been  legally 
dissolved,  and  the  burden  of  showing  that  it  has  not  been,  rests 
upon  the  party  seeking  to  impeach  the  last  marriage.  The  law  does 
not  impose  upon  every  person  contracting  a  second  marriage  the 
necessity  of  preserving  the  evidence  that  the  former  marriage  has 
been  dissolved  eitlicr  by  death  of  their  former  consort  or  by  a  de- 
cree of  court,  in  order  to  protect  themselves  against  a  bill  for  a  di- 
vorce or  a  prosecution  for  bigamy ."^^  In  such  prosecutions  there  is 
not  only  the  ordinary  presumption  of  innocence  but  there  exists  also 
the  presumption  that  the  second  marriage  was  legal  and  valid.  This 
is  the  basis  for  rejecting  proof  of  cohabitation  as  insufficient  proof 
of  marriage  in  prosecutions  of  bigamy,  as  the  law  generally  sup- 
poses that  the  accused  would  abandon  an  illicit  cohabitation  rather 
than  commit  the  crime  of  bigamy.  So  on  this  theory  it  has  been 
stated  that  "the  presumption  of  marriage  will  not  arise  from  the  co- 

•"  People  v.  Brown,  34  Mich.  339;  81;    Teter   v.    Teter,    101    Ind.    129; 

People  v.  Mendenhall,  119  Mich.  404,  Boulden  v.   Mclntire,  119   Ind.   574, 

78  N.  W.  325.  21   N.   E.   445;    Wenning  v.    Teeple, 

=«  Harris  v.  Harris,  8  111.  App.  57;  144  Ind.  189,  41  N.  E.  600;  Dixon  v. 

Donahue   v.    Donahue,   17    111.   App.  People,  18  Mich.  84;  Hull  v.  Rawls, 

578;    Johnson    v.    .Johnson,    114    111.  27  Miss.  471;  Klein  v.  Landman,  29 

611,  3  N.  B.  232;  Schmisseur  v.  Bea-  Mo.  259;    Yates  v.  Houston,  3  Tex. 

trie,  147  111.  210,  35  N.  E.  525;  Pot-  433;     Greensborough    v.    Underhill. 

ter  V.  Clapp,  203  111.  592,  68  N.  E.  12  Vt.  604. 


§    2866.]  BIGAMY.  liS 

liabitntion  of  a  man  with  a  woman,  if  during  lier  life  and  without  any 
proof  of  a  divorce,  he  marries  another  wonian."-^ 

§  2866.  First  husband  or  wife  living — Proof. — The  statutes  on 
the  subject  of  bigamy  necessarily  provide  that  the  offense  consists 
in  marrying  another  person  when  the  husband  or  wife  of  a  prior  ex- 
isting marriage  is  still  living.  In  order  to  establish  the  offense  under 
such  statutes  it  must  be  proved  beyond  a  reasonable  doubt  that  the 
former  husband  or  wife  is  living,  or  was  alive  at  the  date  of  the  al- 
leged second  marriage.  Such  proof  is  essentialto  a  conviction;  but 
it  is  not  necessary  that  the  evidence  on  this  subject  be  direct  and 
positive;  the  fact  may  be  shown  by  circumstantial  evidence.  Nor  is 
it  always  necessary  that  the  proof  show  that  the  former  husband  or 
wife  was  alive  at  the  precise  time  of  the  alleged  second  marriage,  but 
if  either  is  shown  to  be  living  recently  prior  to  the  time  of  such  mar- 
riage, it  is  held  by  some  courts  that  the  law  will  presume  the  con- 
tinuation of  life.-''  The  record  of  a  decree  of  divorce  in  favor  of  the 
first  wife,  entered  subsequent  to  the  time  of  the  alleged  bigamous 
marriage  was  held  competent  and  sufficient  to  show  that  the  true  and 
lawful  wife  was  living  at  the  time  of  the  second  marriage.^''  But 
the  fact  that  the  second  wife  knew  that  a  former  wife  was  living  does 
not  make  the  second  marriage  any  less  bigamous  or  polygamous; 
the  effect  of  such  knowledge  is  to  vitiate  the  second  marriage.^'' 

2^  Jones    V.    Jones,    45    Md.    144;  43  Minn.  385,  45  N.  W.  848;   Gibson 

Breakey  v.  Breakey,  2  U.  C.  Q.  B.  v.  State,  38  Miss.  313;  State  v.  Zich- 

349;  ante,  Vol.  I,  §  123.  field,  23  Nev.  304,  46  Pac.  802;  State 

=8Dotson    V.    State,    62    Ala.    141;  v.  Norman,  13  N.  Car.  222;   State  v. 

Jones  V.  State,  67  Ala.  84 ;  Parker  v.  Burns,  90  N.  Car.  707 ;  Niece  v.  Ter- 

State,  77  Ala.  47;  Scoggins  v.  State,  ritory,  9  Okla.  535,  60  Pac.  300;  Gise 

32   Ark.    205;    People  v.    Feilen.    58  v.  Commonwealth,  81  Pa.  St.  428,  2 

Cal.  218;  Prichard  v.  People,  149  111.  Wkly.  No.  Cas.  589;    State  v.  Bare- 

50,  36   N.   E.   103;    Hiler  v.   People,  foot,  2  Rich.  L.   (S.  Car.)   209;   Gor- 

156  111.  511,  41  N.  E.  181;  Squire  v.  man  v.  State,  23  Tex.  646;    May  v. 

State,  46  Ind.  459;  State  v.  Hughes,  State,    4    Tex.    App.    424;     Hujl    v. 

35  Kans.   626,  12  Pac.   28;    Johnson  State,    7    Tex.    App.    593;     State    v. 

V.  Commonwealth,  86  Ky.  122,  5  S.  Goodrich,  14  W.  Va.  834;  2  Wharton 

W.    365;    State    v.    Barrow,    31    La.  Cr.  Law,  §§  1704,  1705;  Bishop  Stat. 

Ann.   691;    Barber  v.   State,   50  Md.  Crimes,  §  611;  Reg.  v.  Lumley,  L.  R. 

161;     Commonwealth     v.     Mash,     7  ICC.   Res.    196,   11   Cox   Cr.   Cas. 

Mete.    (Mass.)    472;    Commonwealth  274. 

V.  McGrath,  140  Mass.  296,  6  N.  E.         =' Halbrook  v.  State,  34  Ark.  511; 

515;   Commonwealth  v.  Caponi,  155  State  v.  Ashley,  37  Ark.  403. 
Mass.  534,  30  N.  E.  82;  State  v.  Arm-         =»  United  States  v.  Tenney,  2  Ariz, 

ington,  25  Minn.  29;   State  v.  Plym,  127,  11  Pac.  472. 


149  FIRST  HUSBAND  OR  WIFE   LIVIXG.       [§§    28GT,    28G8. 

§  2867.  First  husband  or  wife  living — Presumptions. — While  it 
is  necessary  for  the  state  to  prove  tliat  the  iirst  husband  or  wife  was 
living,  it  is  not  required  always  to  prove  this  fact  by  positive  or  di- 
rect evidence.  In  some  instances  presumptions  may  supply  the  proof 
or  ratlier  aid  the  evidence  offered.  Thus  it  has  heen  held  that  if  the 
proof  shows  that  recently,  or  at  a  period  not  too  remote  before  the 
second  marriage,  the  first  husband  or  wife  was  living,  tlic  jury  may 
presume  that  such  first  husband  or  wife  was  still  living  at  the  time 
of  the  marriage.^  ^  In  such  cases  there  then  arises  a  conflict  of  pre- 
sumptions. The  law  presumes  the  accused  to  be  innocent.  But  in 
this  class  of  cases  it  may  be  presumed  that  tlie  former  liusband  or 
wife  is  living.  There  becomes  a  clear  conflict  of  presumptions.  One 
class  of  cases  holds  that  these  counter  presumptions  neutralize  each 
other,  and  that  the  case  must  rest  on  the  evidence  and  otlier  pre- 
sumptions which  must  be  sufficient  to  establisli  the  guilt  l)eyond  a 
reasonable  doubt. ^^  But  another  class  of  cases,  perhaps  of  equal 
weight  if  not  on  better  reasoning,  has  held  that  where  neither  pre- 
sumption is  aided  by  proof  of  facts  or  circumstances,  that  the  pre- 
sumption of  innocence  supplemented  by  the  presumption  of  the  valid- 
ity of  the  second  marriage  must  prevail  over  the  presumption  that 
the  first  husband  or  -wife  is  still  living.^^ 

g  2868.  Absence  of  husband  or  wife — Effect  and  burden. — Some 
exceptions  are  made  by  these  statutes  to  the  ell'ect  tliat  where  a  lius- 

=1  Parker  v.   State.   77  Ala.  47,  54  El.  540;  Rex  v.  Twyning,  2  B.  &  Aid. 

Am.  R.  43;   Squire  v.  State,  46  Ind.  386;    Reg.  v.  Willshlre,   14  Cox  Cr. 

459;   Gorman  v.  State,  23  Tex.  646;  Cas.  541,  6  L.  R.  Q.  B.  366;   Reg.  v. 

Williams   v.   Williams,    63    Wis.    58,  Lumley,  L.  R.,  1  C.  C.  Res.  196,  11 

23   N.  W.   110;    Reg.   v.   Lumley,   11  Cox  Cr.  Cas.  274;    1  Greenleaf  Ev., 

Cox  Cr.  Cas.  274.  L.  R.,  1  C.  C.  Res.  §§     34,    35;     Bishop    Stat.     Crimes, 

196;    Reg.  v.  Willshire,  14  Cox  Cr.  §  611;    1  Bishop  Mar.  Dlv.  &  Sep., 

Cas.    541,   6    L.   R.   Q.   B.   366;    Reg.  §  949,  et  seq. 
V.  Jones,  15  Cox  Cr.  Cas.  284.  -People   v.    Feilen,    58   Cal.    218; 

^-People    V.    Feilen,    58    Cal.    218;  White  v.  White,  82  Cal.  427,  23  Pac. 

White  V.  White,  82  Cal.  427,  23  Pac.  276;     Johnson   v.   Johnson,    114    111. 

276;    Donahue   v.    Donahue,    17    111.  611,  3  N.  E.  232;  Jones  v.  Jones,  48 

App.   578;    Squire  v.   State,  46   Ind.  Md.  391;  Senser  v.  Bower,  1  P.  &  W. 

459;    Dixon  v.  People,  18  Mich.  84;  (Pa.)    450;    Chapman   v.    Cooper,    5 

State  V.  Plym,  43  Minn.  385,  45  N.  Rich.  L.  (S.  Car.)  452;  Montgomery 

W.  848;  Clayton  v.  Wardell,  4  N.  Y.  v.  Bevans,  1  Sawy.  (U.  S.)  653,  666: 

230;    Fenton  v.  Read,  4  Johns.    (N.  Hull    v.    State,    7    Tex.    App.    593; 

Y.)    52;    Northfield  v.  Plymouth,  20  Greensborough  v.  Underhill,  12  Vt. 

Vt.  582;   Rex  v.  Harborne,  2  Ad.  &  604. 


§§  2869,  2870.]  bigamy.  150 

band  or  wife  has  been  absent  or  unheard  of  for  a  certain  number  of 
years  the  other  may  lawfully  marry.  But  to  make  such  absence  a  de- 
fense the  proof  must  show  that  it  was  continuous  for  the  statutory 
period  and  the  husband  or  wife  re-marrying  must  be  ignorant  of  the 
life  or  death  of  the  absent  spouse;  the  two  elements  must  concur. 
So  when  the  state  proves  that  the  former  husband  or  wife  was  living 
at  a  specified  time  before  the  second  marriage  the  burden  is  then 
upon  the  defendant  to  show  either  death  or  a  continuous  absence 
for  the  statutory  period.^*  And  when  the  defendant  has  proved  seven 
years'  continuous  absence  as  held  by  some  cases,  the  burden  is  then 
on  the  state  to  prove  that  the  accused  knew  that  the  other  spouse 
was  alive  within  such  period.^^ 

§  2869.     First  husband  or  wife  living — Distinction  in  statutes. 

Some  of  these  statutes  provide  that  if  any  person,  who  has  a  former 
husband  or  wife  living,  shall  marry  another  person,  he  shall  be  guilty 
of  bigamy,  except  in  certain  cases.  Others  provide  in  substance  that 
if  any  man  or  woman,  being  unmarried,  shall  knowingly  marry  the 
wife  or  husband  of  another  person,  such  man  or  woman  shall  be 
deemed  guilty  of  the  crime  of  bigamy.  Under  both  classes  of  statutes 
it  is  incumbent  on  the  state  to  prove  that  the  accused  knew  either  that 
the  former  husband  or  wife  was  still  living  or  that  the  other  party  to 
the  second  marriage  had  a  husband  or  wife  living.^^ 

§  2870.  Polygamy — Proof  under  Edmunds  law. — The  United 
States  statute  for  the  suppression  of  polygamy,  commonly  called  the 
Edmunds  Act  was  intended  not  only  to  suppress  and  punish  polyga- 
mous marriages  but  also  to  prevent  and  punish  persons  who  had 
theretofore  contracted  such  marriages  from  thereafter  cohabiting 
with  more  than  one  woman.  It  was  especially  provided  by  that  act 
that  if  any  male  person  in  the  exclusive  jurisdiction  of  the  United 
States  should  cohabit  with  more  than  one  woman,  he  should  on 
conviction  be  punished,  etc.  Under  this  statute  it  has  been  held  that 
to  establish  the  offense  it  is  not  necessary  to  prove  that  the  accused 

=•*  Jones  v.  State,  67  Ala.  84;  Par-  Reg.  v.  Heaton,  3  Fost.  &  F.   819; 

ker  V.  State,  77  Ala.  47;  2  Wharton  Bishop  Stat.  Crimes,  §  607. 

Cr.  Law,  §§  1704,  1705.  ^Parker  v.  State,  77  Ala.  47;  Ar- 

•'»  People  v.  Meyer,  8  N.  Y.  St.  256;  nold  v.   State,  53  Ga.  574;    State  v. 

Reg.  v.  Curgenwen,  10  Cox  Cr.  Cas.  Barrow,  31  La.  Ann.   691;    State  v. 

152;  Reg.  v.  Ellis,  1  Fost.  &  F.  309;  Johnson,  12  Minn.  476,  93  Am.  Dec. 

252. 


151  POLYGAMY — GOOD  FAITH  NO  DEFENSE.       [§  2871. 

and  two  or  more  women,  or  either  of  them,  occupied  the  same  bed 
or  slept  in  the  same  room,  or  that  he  had  sexual  intercourse  with  either 
of  them.  The  statute  was  intended  to  refer  to  the  relation  between 
man  and  woman,  founded  on  the  existence  of  actual  marriage,  or  on 
the  holding  out  of  that  existence.  Of  this  the  Supreme  Court  of  the 
United  States  say :  "It  is  the  practice  of  unlawful  cohabitation  with 
more  than  one  woman  that  is  aimed  at,  a  cohabitation  classed  with 
polygamy  and  having  its  outward  semblance.  II  is  not  on  the  one 
hand  meretricious  unmarital  intercourse  with  more  than  one  woman. 
General  legislation  as  to  lewd  practice  is  left  to  the  territorial  govern- 
ment. Nor,  on  the  other  hand,  does  the  statute  pry  into  the  intimacies 
of  the  marriage  relation.  But  it  seeks  not  only  to  punish  bigamy  and 
polygamy,  when  direct  proof  of  the  existence  of  those  relations  can 
be  made,  but  to  prevent  a  man  from  flaunting  in  the  face  of  the 
world  the  ostentation  and  opportunities  of  a  bigamous  household, 
with  all  the  outward  appearances  of  the  continuance  of  the  same  re- 
lations which  existed  before  the  act  was  passed,  and  without  reference 
to  what  may  occur  in  the  privacy  of  those  relations."^^  And  tliis  rule 
has  been  carried  to  the  point  of  holding  a  man  guilty  under  this 
statute  who  has  two  wives  residing  within  the  jurisdiction  of  the  court, 
both  bearing  his  name  and  known  as  his  wives,  even  where  the  evi- 
dence shows  that  he  has  deserted  one  and  cohabits  exclusively  with 
the  other.^^  So  under  a  charge  of  living  and  cohabiting  together 
it  was  conceded  that  sexual  intercourse  was  a  necessary  element  of 
the  statutory  offense ;  but  it  was  held  that  the  offense  might  be  estab- 
lished without  proof  of  the  sexual  act,  even  where  the  proof  showed 
absolute  incapacity  on  the  part  of  one  of  the  parties,  as  the  continual 
sexual  intercourse  during  entire  time  was  not  indispensable  to  the  con- 
tinuance of  the  bigamous  cohabitation.^^ 

§  2871.  Second  marriage  in  good  faith — No  defense. — The  au- 
thorities are  practically  unanimous  in  holding  that  proof  of  the  fact 
that  the  second  marriage  was  entered  into  in  good  faith  and  under 
the  honest  belief  that  the  first  spouse  was  dead,  constitutes  no  de- 

'"  Cannon  v.  United  States,  116  U.  463 ;    United   States  v.  Groesbeck,  4 

S.  55,  6  Sup.  Ct.  278;  United  States  Utah   487,   11   Pac.   542;    Murphy  v. 

V.    Snow,   4   Utah   295,   9    Pac.    686;  Ramsey,  114  U.  S.  15,  5  Sup.  Ct.  747. 

United  States  v.  Smith,  5  Utah  232,  ''  United   States  v.  Clark.  6  Utah 

14  Pac.  291;  United  States  v.  Peay,  120,  21  Pac.  463. 

5    Utah    263,    14    Pac.    342;    United  =*»  Cox  v.  State,  117  Ala.  103,  23  So. 

States  V.  Clark,  6  Utah  120,  21  Par.  806. 


§•   2872.]  BIGAMY,  152 

fense  to  a  charge  of  bigamy.  It  will  be  observed,  however,  that  these 
holdings  are  mostl}'  under  statutes  where  the  criminal  intent  is  not 
an  essential  of  the  crime;  and  under  such  statutes  the  second  mar- 
riage is  contracted  at  the  risk  of  the  parties.'*"  On  this  subject  the 
Supreme  Court  of  Massachusetts  have  said :  "It  appears  to  us,  that 
in  a  matter  of  this  importance,  so  essential  to  the  peace  of  families 
and  the  good  order  of  society,  it  was  not  the  intention  of  the  law  to 
make  the  legality  of  a  second  marriage,  whilst  the  former  husband 
or  wife  is  in  fact  living,  depend  upon  ignorance  of  such  absent  party's 
being  alive,  or  even  upon  an  honest  belief  of  such  person's  death. 
Such  belief  might  arise  after  a  very  short  absence.  But  it  appears  to 
us,  that  the  legislature  intended  to  prescribe  a  more  exact  rule,  and  to 
declare,  as  law,  that  no  one  shall  have  a  right  upon  such  ignorance 
that  the  other  party  is  alive,  even  upon  such  honest  belief  of  death,  to 
take  the  risk  of  marrying  again,  unless  such  belief  is  confirmed 
by  an  absence  of  seven  years,  with  ignorance  of  the  absent  party's 
being  alive  within  that  time."-*^  But  some  cases  hold  that  evidence 
of  good  faith  is  admissible  for  the  purpose  of  mitigating  the  punish- 
ment.*^ 

§  2872.  Second  marriage  in  good  faith — Defense. — Under  the  pe- 
culiar wording  of  some  statutes  in  such  prosecution,  a  few  cases  hold 
that  where  the  proof  showed  that  the  accused  had  used  due  care 
and  had  made  due  inquiry  in  order  to  ascertain  the  truth,  and 
that  he  had  reliable  information  and  had  reason  to  believe  and  did 
in  fact  believe  that  the  other  spouse  had  obtained  a  legal  divorce, 
a  conviction  could  not  be  sustained.*^  The  same  rule  seems  to  obtain 
in    some   jurisdictions   where   the   accused   on   reliable   information 

*«Dotson    V.    State,    62    Ala.    141;  Pac.   802;    People  v.  Weed,  29   Kun 

2  McClain  Cr.  Law,  §  1076.  (N.  Y.)    628;    Medrano  v.  State,   32 

"Russell  V.  State,  66  Ark.  185,  49  Tex.   App.    214;    Reg.   v.    Moore,    13 

S.  W.  821;  State  v.  Hughes,  58  Iowa  Cox   Cr.   Cas.   544;    Reg.   v.    Tolson, 

165,   11   N.   W.   706;    Davis  v.  Com-  L.  R..  23  Q.  B.  168. 
monwealth,    13    Bush     (Ky.)     318;         ^=  Russell  v.  State,  66  Ark.  185,  49 

State  v.  Goodenow,  65  Me.  30;  Com-  S.  W.  821. 

monwealth  V.  Mash,  7  Mete.  (Mass.)  '="  Squire  v.   State,   46   Ind.  459;    1 

472;  Commonwealth  v.  Hayden,  163  Bishop     Cr.     Law,     187,     note     15; 

Mass.  453,  40  N.  E.  846;  Reynolds  v.  Bishop  Stat.  Crimes,  §§  596a,  59Cb; 

State,   58    Neb.    49,    78    N.    W.    483;  2  McClain  Cr.  Law,  1076. 
State  V.   Zichfield,   23   Nev.   304,   46 


153  DIVORCE   AS   A   DEFEXSE,  [§§    2873,    2874. 

honestly  believed  that  the  spouse  of  the  first  marriage  was  dead  and 
the  second  marriage  was  contracted  in  good  faith.** 

§  2873.  Divorce  as  a  defense — Burden. — A  legal  divorce,  duly 
granted  before  the  second  marriage  constitutes  a  valid  defense  to  a 
charge  of  bigamy.  But  where  evidence  of  a  divorce  is  offered  as  a  de- 
fense in  such  a  case,  it  has  been  held  that  the  burden  is  on  the  de- 
fendant to  prove  the  validity  of  the  decree.  This  is  on  the  theory 
that  "when  the  defendant  is,  in  the  first  instance,  shown  to  have 
done  an  act  which  was  unlawful  unless  he  was  distinctly  authorized 
to  do  it,  the  proof  of  authority  is  thrown  upon  him."*^  And  it  has 
been  held  by  many  cases  that  an  invalid  decree  of  divorce  affords 
no  defense  to  a  charge  of  bigamy.  This  rule  is  applied  more  especially 
to  the  cases  where  it  appeared  that  the  accused  was  the  person  who 
procured  such  pretended  divorce.**^  And  the  rule  has  been  held  to 
be  the  same  where  the  accused  acted  under  legal  advice  and  was  in- 
formed and  honestly  believed  that  he  was  lawfully  divorced  from  the 
first  wife.*" 

§  2874.  First  and  second  wives  as  witnesses. — The  statutes  very 
generally  provide  that  in  criminal  cases  the  husband  and  wife  shall 
not  be  Avitnesses  for  or  against  each  other.  The  cases  are  not  har- 
monious on  the  question  of  the  competency  of  the  first  and  lawful 
wife  as  a  witness  in  prosecution  for  bigamy.  The  general  rule,  sup- 
ported by  the  weight  of  the  authorities,  is  that  in  such  a  prosecution 

"Dixon   V.    People,   18    Mich.    84;  '"Thompson  v.  State,  28  Ala.  12; 

People  V.   Meyer,   8   N.   Y.   St.   25G;  Tucker  v.  People,  122  111.  583,  13  N. 

Reynolds  v.    State,   58    Neb.    49,    78  E.  809;   Hood  v.  State,  56  Ind.  263; 

N.  W.  483;    State  v.  Stank,  9  Ohio  Commonwealth   v.   Lane,   113   Mass. 


Dec.  8,  10  Cin.  Wk.  Law  Bui.  16 
Reg.  V.  Turner,  9  Cox  Cr.  Cas.  145 
Reg.  V.  Jones,  11  Cox  Cr.  Cas.  358 
Reg.  v.  Horton,  11  Cox  Cr.  Cas.  670 
g.  V.  Moore,  13  Cox  Cr.  Cas.  544 


458;  People  v.  Dawell,  25  Mich.  247; 
Crawford  v.  State,  73  Miss.  172,  18 
So.  848;  State  v.  Gonce,  79  Mo.  600; 
People  V.  Baker,  76  N.  Y.  78 ;  People 
V.   Faber,   92   N.  Y.   146;    People   v. 


Reg.  V.  Tolson,  L.  R.  23  Q.  B.  168,  Chase,  28  Hun   (N.  Y.)   310;   People 

16  Cox  Cr.  Cas.  629.  v.  Weed,  29  Hun   (N.  Y.)   628;  Van 

^=  Comonwealth  v.  Boyer,  7  Allen  Fossen  v.  State,  37  Ohio  St.  317;   2 

(Mass.)    306;    State   v.    Barrow,    31  McClain  Cr.  Law,  §  1075. 
La.  Ann.  691;  Reynolds  v.  State,  58         <"  Russell  v.  State,  66  Ark.  185,  49 

Neb.    49,    78    N.    W.    483;     Tice    v.  S.  W.  821;    State  v.  Armington.  2."> 

Reeves,  30  N.  J.  L.  314;  1  Jones  Ev.,  Minn.  29;   Davis  v.  Commonwealth, 

§  199.  13  Bush   (Ky.)   318. 


§  2874.] 


BIGAMY. 


154 


the  first  and  true  wife  is  not  competent  as  a  witness  against  her 
husband/^  But  some  courts  hold  that  the  lawful  wife  is  a  competent 
witness  against  the  accused  to  prove  the  marriage  between  them.*® 
Where  the  first  marriage  is  clearly  proved,  or  in  case  it  is  not  con- 
troverted, it  has  been  held  that  the  second  wife  is  a  competent  wit- 
ness to  prove  the  second  marriage,  and  that  she  is  competent  as  to  all 
other  questions  which  do  not  tend  to  defeat  the  first  marriage  or 
legalize  the  second.^" 


"Wiliams  v.  State,  44  Ala.  24; 
State  V.  Ryan,  1  Pen.  (Del.)  81,  39 
Atl.  777;  Williams  v.  State,  67  Ga. 
260;  Miner  v.  People,  58  111.  59; 
Hiler  v.  People,  156  111.  511,  41  N.  E. 
181;  Barber  v.  People,  203  111.  543, 
68  N.  E.  93;  People  v.  Quanstrom,  93 
Mich.  254,  53  N.  W.  165;  People  v. 
Westbrook,  94  Mich.  629,  54  N.  W. 
486;  People  v.  Turner,  116  Mich. 
390,  74  N.  W.  519;  State  v.  Arm- 
strong, 4  Minn.  335;  Overton  v. 
State,  43  Tex.  616;  Compton  v. 
State,  13  Tex.  App.  271;  Bassett  v. 
United  States,  137  U.  S.  496,  11  Sup. 
Ct.  165;  State  v.  McDavid,  15  La. 
Amn.  403;  State  v.  Ulrich,  110  Mo. 
350,    19    S.    W.    656;    Bishop    Stat. 


Crimes,  §  613;  1  Russell  Crimes, 
§  715. 

*'  State  v.  Sloan,  55  Iowa  217,  219, 
7  N.  W.  516;  State  v.  Hughes,  58 
Iowa  165,  11  N.  W.  706;  State  v. 
Armstrong,  4  Minn.  335;  Lord  v. 
State,  17  Neb.  526,  23  N.  W.  507; 
Owens  v.  State,  32  Neb.  167,  174,  19 
N.  W.  226;  State  v.  McDavid,  15  La. 
Ann.  403 ;  State  v.  Patterson,  2  Ired. 
L.  (N.  Car.)  346;  Johnson  v.  State, 
61  Ga.  305;  Finney  v.  State,  3  Head 
(Tenn.)    544. 

^"Lowery  v.  People,  172  111.  466, 
50  N.  E.  165;  Barber  v.  People,  203 
111.  543,  68  N.  E.  93;  Miles  v.  United 
States,  103  U.  S.  304;  State  v.  Pat- 
terson, 2  Ired.  L.    (N.  Car.)    346. 


CHAPTER  CXXXV. 


BLACKMAIL. 


Sec.  Sec. 

2875.  Nature  and  extent.  2884.  Instituting    criminal    proceed- 

2876.  Definition.  ings — Intent. 

2877.  Statutory  definition.  2885.  Proof  of  intent  to  extort. 

2878.  Extortion.  2886.  Threats    to    collect    bona    fide 

2879.  Extortion  and  bribery.  indebtedness. 

2880.  Proof  of  threat.  2887.  Truth  or  falsity  of  charge  ira- 

2881.  Parol  proof  to  aid  or  explain  material. 

writing.  2888.  Knowledge     that     crime     was 

2882.  Threat  of  prosecution.  committed — No  defense. 

2883.  Threat— Prosecution  by  third 

person. 

§  2875.  Nature  and  extent. — The  term  "blackmail"  originated  in 
the  nature  and  character  of  certain  rents.  Originally  the  idea  of 
crime  was  not  associated  with  the  term.  In  later  English  history 
the  term  was  used  to  denote  a  tribute  enforced  by  Scottish  Higliland 
chieftains  on  the  inhabitants  of  the  Lowlands,  or  on  English  dwellers 
along  the  Scottish  border  on  condition  that  they  should  be  free  from 
the  raids  of  the  border  thieves.  In  the  progress  and  history  of  the  de- 
velopment of  crime  the  term  has  come  to  be  applied  to  threats  or 
threatening  letters  accusing  and  threatening  prosecution  and  ex- 
posure unless  a  sum  of  money  is  paid  or  valuable  articles  or  property 
delivered.  It  now  also  generally  includes  the  idea  of  extortion  by 
an  officer  who,  under  threats  or  menace  of  arrest  and  imprisonment 
compels  the  payment  of  illegal  or  unwarranted  fees.^ 

§  2876.  Definitions. — The  general  definitions  of  the  term  black- 
mail include  the  idea  of  compelling  a  person  to  pay  a  sum  of  money 
in  consideration  that  the  person  demanding  the  money  will  not 
prosecute  him  for  an  alleged  crime  or  expose  him  on  account  of  some 
alleged  infamous  conduct.    A  more  practical  definition  is  given  as 

*1  Hume  Hist,  of  Eng.  473;   Life  Asso.    &c.   v.    Boogher,   3   Mo.   App. 
173. 

155 


§    2877.]  BLACKMAIL.  156 

follows :  "the  extortion  of  money  by  threats  or  overtures  towards 
criminal  prosecution,  or  the  destruction  of  a  man's  reputation  or 
social  standing."'  One  of  the  New  York  inferior  courts  said  of  the 
term :  "In  common  parlance,  and  in  general  acceptation,  it  is  equiva- 
lent to,  and  synonymous  with,  extortion — the  exaction  of  money, 
either  for  the  performance  of  a  duty,  the  prevention  of  an  injury  or 
the  exercise  of  an  influence.  It  supposes  the  service  to  be  unlawful, 
and  the  pa3^ment  involuntary.  Not  unfrequently  it  is  extorted  by 
threats,  or  by  operating  upon  the  fears  or  the  credulity,  or  by 
promises  to  conceal,  or  offers  to  expose,  the  weaknesses,  the  follies,  or 
the  crimes  of  the  victim.  There  is  moral  compulsion,  which  neither 
necessity,  nor  fear,  nor  credulity  can  resist."^ 

§  2877.  Statutory  definition. — The  statutes  which  define  the  of- 
fense and  prescribe  the  penalty  do  not  always  use  the  term  black- 
mail; but  it  comes  clearly  within  the  meaning  and  terms  of  these 
statutory  definitions.  The  statutes  upon  the  subject  are  substantially 
as  follows:  "That  if  any  person  shall  either  verbally,  or  by  any  let- 
ter or  writing,  or  any  written  or  printed  communication  demand  of 
any  person  with  menaces,  any  chattel,  money,  or  other  valuable  se- 
curity; or  if  any  person  shall  accuse  or  threaten  to  accuse,  or  shall 
knowingly  send  or  deliver  any  letter  or  writing  or  any  written  or 
printed  communication,  with  or  without  a  name  subscribed  thereto, 
or  signed  with  a  fictitious  name,  or  with  any  letter,  mark  or  designa- 
tion, accusing  or  threatening  to  accuse,  any  person  of  any  crime, 
punishable  by  law,  or  of  any  immoral  conduct,  which,  if  true,  would 
tend  to  degrade,  and  disgrace  such  person,  or  to  do  any  injury  to  the 
person  or  property  of  any  one,  with  intent  to  extort  or  gain  from  such 
person,  any  chattel,  money  or  valuable  security,  or  any  pecuniary  ad- 
vantage whatsoever,  or  with  an  intent  to  compel  the  person  threatened 
to  do  any  act  against  his  will,  with  the  intent  aforesaid;  every  such 
offender  shall  be  deemed  guilty  of  a  felony."* 

=  Black    Law    Diet— "Blackmail:"  Sparks,  44  Kans.  465,  24  Pac.  979; 

1    Bouvier    L.    Diet. — "Blackmail;"  2  Wharton  Cr.  Law.  §  1664. 
1    Rap.    &    Lawr.    L.    Diet.— "Black-         *  McMillen  v.   State.  60   Ind.  216; 

mail."  Kistler  v.  State,  54  Ind.  400;    State 

^Edsall    V.    Brooks,    17    Abb.    Pr.  v.   Hammond,   80   Ind.   80;    State  v. 

(N.  Y.)    221,   26  How.   Pr.    (N.   Y.)  Pierce,  76  Iowa  189,  40  N.  W.  715; 

426,   2   Rob.    (N.  Y.)    29;    Edsall   v.  People  v.    Griffin,   2   Barb.    (N.,  Y.) 

Brooks,  3  Rob.  (N.  Y.)  284;  Hess  v.  427;   Brabham  v.  State,  18  Ohio  Ct. 

485. 


157  EXTORTION.  [§§  2878-2880. 

S  2878,  Extortion. — lATiat  is  now  called  extortion  and  generally 
made  criminal  comes  clearly  within  the  definition  and  meaning  of 
blackmail.  But  it  is  more  limited  in  its  application  as  a  criminal  of- 
fense. As  a  crime  it  is  applied,  perhaps  exclusively,  to  officers  who 
by  reason  of  their  official  position  and  by  threats  and  menaces  extort 
money  unlawfully  or  without  authority  of  law.  Blackstone  defines 
it  to  be  "an  abuse  of  public  justice  which  consists  in  any  officers 
unlawful  taking,  by  color  of  his  office,  any  money  that  is  not  due  to 
him."'^  The  statutory  offense,  usually  consists  in  taking  or  exacting 
(jompensation  or  reward  for  services  in  addition  to  such  as  are  al- 
lowed by  law  and  is  generally  made  a  misdemeanor  only.*^  As  de- 
fined by  one  law  writer:  "It  is  the  corrupt  demanding  or  receiving 
by  a  person  in  office,  of  a  fee  for  services  whicli  sliould  l)c  rendered 
gratuitously;  or  where  compensation  is  permissible,  of  a  larger  fee 
than  the  law  justified,  or  a  fee  not  yet  due."^ 

§2879.  Extortion  and  bribery. — A  clear  distinction  exists  be- 
tween the  statutory  offense  of  extortion  and  bribery.  Proof  of  the  one 
will  not  support  the  other,  and  the  soliciting  and  accepting  of  a 
bribe  by  an  officer  cannot  be  shown  to  be  extortion.  Thus  proof  that 
an  officer  holding  a  search  warrant  indicated  that  for  a  sum  of  money 
paid  him  he  would  not  serve  the  warant,  and  that  he  did  receive  and 
accept  a  sum  of  money,  was  held  insufficient  to  sustain  a  charge  of 
blackmail  or  extortion.^ 

§  2880.  Proof  of  threat. — The  proof  must  show  that  a  threat  was 
used  for  the  purpose  or  with  the  intention  of  extorting  the  money. 
But  it  is  not  necessary  that  either  the  oral  language  or  the  writing 
should  expressly  state  a  threat ;  it  is  not  even  necessary  that  the  threat 
should  be  apparent  from  the  face  of  the  letter.  It  is  sufficient  under 
some  statutes,  if  the  language  used  is  adapted  to  imply  a  threat ;  it  is 
then  held  to  come  within  the  statute.  It  has  been  held  that  if  the  writ- 
ing is  adapted  to  imply  one  or  more  of  the  threats  mentioned  in  the 
statute  the  offense  is  committed.  On  this  subject  the  California  court 
say:  "Parties  guilty  of  the  offense  here  alleged  seldom  possess  the 
hardihood  to  speak  out  boldly  and  plainly,  but  deal  in  mysteries  and 

^2  Blackstone  Comm.  141.  '2  Bishop  Cr.  Law  (New),  §  390; 

^Edsall  v.  Brooks,  3  Rob.  (N.  Y.)      2  Wharton  Cr.  Law,  §  1574. 
284.  estate  v.  Pierce,  76  Iowa  189,  40 

N.  W.  715. 


§    2881.]  BLACKilAIL.  158 

ambiguous  phrases,  mysterious  and  ambiguous  to  the  world  at  large, 
but  read  in  the  light  of  surrounding  circumstances  by  the  party  for 
whom  intended  they  have  no  uncertain  meaning.'"^  The  New  York 
court  has  emphasized  the  fact  that  no  precise  words  are  necessary  to 
convey  the  threat.  The  court  said :  "To  ascertain  whether  a  letter  con- 
veys a  threat,  all  its  language,  together  with  the  circumstances  un- 
der which  it  was  written,  and  the  relations  between  the  parties  may 
be  considered,  and  if  it  can  be  found  that  the  purport  and  natural 
effect  of  the  letter  is  to  convey  a  threat,  then  the  mere  form  of  words 
is  unimportant."^"  It  is  not  necessary  to  prove  the  effect  which  the 
threats  may  have  had  on  the  person  threatened;  nor  is  it  necessary 
to  prove  that  any  money  or  property  was  thereby  obtained.  The  of- 
fense under  the  statutes  generally  consists  in  the  malicious  threat 
to  accuse  another  of  an  offense  with  intent  to  extort  money. ^^ 

§  2881.  Parol  proof  to  aid  or  explain  writing. — The  proof  must 
show  to  the  satisfaction  of  the  jury  that  the  threat  was  made  in  the 
letter,  where  it  is  so  charged.  But  if  the  threat  does  not  clearly  appear 
parol  proof  is  admissible  and  competent  to  show  that  by  the  use 
of  the  language,  figures  or  phrases  employed  by  the  writer,  the  threat 
was  in  fact  made.  "A  person,  by  the  use  of  a  phrase  or  word,  or  by 
referring  to  some  prior  circumstances,  well  laiown  to  both  parties, 
might  convey  to  the  mind  of  the  persons  addressed,  the  understand- 
ing that,  if  the  thing  requested  or  demanded  was  not  done,  that  the 
writer  would  accuse  him  of  some  criminal  offense  or  violation  of 
the  moral  laws  of  the  community  where  he  resided,  which  would 
bring  him  into  contempt  and  disgrace."^^  If  the  letter  containing 
the  threat  is  ambiguous  it  may  be  explained  by  parol  proof  of  ex- 
traneous facts,  and  the  intention  of  the  writer  may  be  obtained  by 
proof  of  his  declarations.  And  it  has  been  held  that  the  prosecuting 
witness  may  be  asked  as  to  what  appeared  to  him  to  be  the  meaning 
of  the  letter.^^ 

'People  v.  Choynski,  95  Cal.  640,  Eichler,  75  Hun    (N.  Y.)    26,  26  N. 

30   Pac.    791;    People   v.    Thompson,  Y.  S.  998;    People  v.  Thompson,  97 

97   N.   Y.    313.  N.  Y.  313. 

**  People   v.    Thompson,    97    N.    Y.  '=  Motsinger  v.  State,  123  Ind.  498, 

313.  24  N.   E.   342;    State  v.   Linthicum, 

"State  V.  Bruce.  24  Me.-71.  68  Mo.   66;    2  Wharton  Cr.  Law,   § 

"People   V.   Gillian,   50    Hun    (N.  1665. 
Y.)    35,   2   N.   Y.   S.   476;    People  v. 


159  THREATS.  [§§  2882-2884. 

§  2882.  Threat  of  prosecution. — It  is  not  required  that  the  proof 
show  an  actual  threat  to  institute  criminal  proceedings.  The  threats 
need  not  refer  in  terms  to  the  criminal  courts.  It  is  sufficient  if 
they  reasonably  be  understood  to  embrace  a  criminal  prosecution. 
Thus  where  the  threats  were  "give  me  five  hundred  dollars,  or  I'll 
put  this  thing  in  court,"  and  "if  you  don't  see  my  lawyer  before  five 
o'clock  you  will  be  arrested,"  these  were  held  sufficiently  broad  to  em- 
brace threats  of  a  criminal  prosecution.^*  So  it  has  been  held  that 
proof  of  a  threat  "to  proceed  against  you  criminally,"  is  equivalent 
to  proof  of  a  threat  to  accuse  the  person  of  a  crime. ^^ 

§  2883.  Threat — Prosecution  by  third  person. — Nor  is  it  neces- 
sary to  the  commission  of  the  offense  that  the  person  making  the 
threat  should  himself  make  the  accusation  or  institute  the  criminal 
proceedings.  It  may  be  done  by  a  third  person.  Thus  where  the  let- 
ter containing  the  alleged  threat  showed  that  the  prosecution  would 
be  instituted  by  another  person,  but  where  it  further  appeared  that 
the  writer  of  the  letter  would  be  the  principal  witness  on  the  part 
of  the  state  in  the  criminal  prosecution,  it  was  held  sufficient  as  a 
threat  that  a  formal  accusation  of  crime  would  be  niade.^® 

§  2884.  Instituting  criminal  proceedings — Intent. — The  offense 
may  be  complete  without  sending  any  communication  whatever  to  the 
person  threatened.  It  may  be  committed  by  instituting  criminal  pro- 
ceedings; or  by  entering  into  a  conspiracy  and  instituting  such  pro- 
ceedings for  the  purpose  and  with  the  intent  to  extort  money  or  other 
thing  of  value  by  inducing  or  compelling  the  defendant  in  such  pro- 
ceedings to  pay  money  for  the  purpose  of  ending  the  prosecution. 
Thus  under  an  indictment  which  charged  the  defendants  with  a  con- 
spiracy for  the  purpose  of  extorting  money  by  filing  or  causing  to  bo 
filed  with  an  officer  having  jurisdiction  an  affidavit  charging  an  al- 
leged criminal  assault,  it  was  held  sufficient  to  prove  that  the  affidavit 
was  filed  with  the  intent  of  extorting  money  from  the  person  therein 
accused  and  that  the  criminal  charge  was  a  sufficient  accusation 
within  the  meaning  of  the  statute.^ ^ 

"  Commonwealth    v.     Bacon,     135  "  Commonwealth    v.     Dorus,     lOS 

Mass.    521;    People    v.    Tonielli,    SI  Mass.    488;    People    v.    Braman,    30 

Cal.  275,  22  Pac.  678.  Mich.  460. 

"People  V.  Eichler,  75   Hun    (N.  '' Utterback  v.  State,  153  Ind.  545, 

Y.)  26,  26  N.  Y.  S.  998.  55  N.  E.  420. 


§§  3885,  2886.]  blackmail.  1G3 

§  2885.  Proof  of  intent  to  extort. — The  mere  proof  of  the  words 
used  in  the  way  of  a  threat  is  not  sufficient  to  establish  the  crime.  The 
proof  must  show  the  existence  of  an  intent  to  extort.  The  Supreme 
Court  of  Massachusetts  said :  "The  gist  of  the  offense  is  the  intent 
to  extort  money  by  a  malicious  threat  to  accuse  of  some  crime.  The 
words  used  do  not  constitute  the  offense,  without  the  accompanying 
intent  to  extort."^®  On  this  question  of  the  proof  of  intent  the  same 
court  said :  "The  act  itself  implies  criminal  intent,  and  there  is  no 
occasion  in  construing  the  statute  to  hold  that,  to  create  the  offense, 
anything  more  is  required  than  is  implied  in  the  usual  definition  of 
malice."^''  And  it  has  been  held  that  the  intent  may  appear  on  the 
face  of  the  writing  itself.^" 

§  2886.  Threats  to  collect  bona  fide  indebtedness. — The  question 
has  been  raised  as  to  whether  or  not  the  making  of  threats  to  prosecute 
for  a  supposed  or  alleged  crime  for  the  purpose  of  compelling  the 
payment  of  a  bona  fide  indebtedness  is  an  offense  under  the  various 
statutes  on  the  subject  of  blackmail.  It  must  be  borne  in  mind 
that  the  statutory  offense  consists  in  making  the  threat  with  the  intent 
to  extort  or  for  gain.  The  solution  of  the  problem  then  turns  upon 
the  point  whether  a  threat  to  compel  the  payment  of  a  bona  fide  in- 
debtedness is  or  is  not  an  intention  to  extort  or  to  gain.  The  few 
cases  on  the  subject  have  held  that  such  threats  are  not  within  the 
statute.  Of  this  the  Supreme  Court  of  Indiana  said :  "We  are  of 
opinion  that  a  threat  to  prosecute  for  an  alleged  or  supposed  offense 
connected  with  the  creation  of  a  debt,  where  the  object  of  the  threat 
is  merely  to  secure  the  payment  of  the  debt  due  from  the  person 
threatened  to  the  person  making  the  threat,  does  not  come  within 
the  spirit  or  purpose  of  the  statute."-^  So  where  threats  were  used 
for  the  purpose  of  securing  payment  for  property  destroyed,  and 
where  the  act  on  which  the  threatening  accusation  was  based  was  not 
punishable  by  law,  it  was  held  that  the  offense  was  not  established. ^- 

^'  Commonwealth  v.   Moulton,   108  -"  People  v.  Braman,  30  Mich.  460. 

Mass.  307;   Commonwealth  v.  Good-  "State  v.  Hammond,  80  Ind.  80; 

win,  122  Mass.  19;    People  v.  Card-  People   v.   Griffin,   2   Barb.    (N.   Y.) 

ner,  144  N.  Y.  119,  38  N.  E.  1003;  427;  Mann  v.  State,  47  Ohio  St.  556, 

State  V.  Bruce,  24  Me.  71.  26  N.  E.  226;  see,  Brabham  v.  State, 

"Commonwealth  v.  Goodwin,  122  18  Ohio  St.  485. 

Mass.   19;    Commonwealth   v.   Buck-  -Mann  v.  State,  47  Ohio  St.  556, 

ley,  147  Mass.  581,  18  N.  E.  571.  26  N.  E.  226. 


161  TRUTH  NO  DEFENSE.        [§§  2887,  2888. 

§  2887.  Truth  or  falsity  of  charge  immaterial. — The  prosecution 
is  only  required  to  make  out  or  prove  the  threat  with  the  intention 
of  unLawl'ully  extorting  either  money  or  something  of  value  from 
the  person  threatened.  The  state  is  not  required  to  offer  any  proof 
on  the  subject  of  the  offense  or  conduct  alleged  in  connection  with 
the  threat.  The  truth  or  falsity  of  the  charge  made  on  whicli  the 
threat  or  the  effort  to  extort  is  based,  is  wholly  immaterial.-^ 
On  this  theory  it  was  held  error  for  a  court  to  instruct  a  jury  that 
if  they  found  the  defendant  guilty  of  blackmail  they  might  con- 
sider the  facts  in  relation  to  the  charge  made  as  bearing  on  the 
question  of  his  punishment."*  But  in  some  cases  it  has  been  held  that 
the  truth  of  the  accusation  may  become  material  for  the  purpose 
of  determining  the  intent  with  which  the  defendant  made  the  ac- 
cusation.^^ 

§  2888.  Knowledge  that  crime  was  committed — No  defense. — The 
accused  will  not  be  permitted  to  prove  as  a  matter  of  defense  that 
he  either  believed  or  knew  that  the  person  threatened  was  in  fact 
guilty  of  the  crime  charged.  On  this  subject  it  was  said  by  a  New 
York  court:  "The  fact  that  the  person  who,  in  writing  or  orally, 
makes  such  a  threat  for  such  a  purpose  believes  or  even  knows  that 
the  person  threatened  has  committed  the  crime  of  which  he  is  threat- 
ened to  be  accused,  does  not  make  the  act  less  criminal.  The  moral 
turpitude  of  threatening  for  the  purpose  of  obtaining  money,  to  ac- 
cuse a  guilty  person  of  the  crime  which  he  has  committed  is  as  great 
as  it  is  to  threaten,  for  a  like  purpose,  an  innocent  person  of  having 
committed  a  crime.  Tlie  intent  is  the  same  in  both  cases  to  acquire 
money  without  legal  right  by  threatening  a  criminal  prosecution. 
But  threatening  a  guilty  person  for  such  a  purpose  is  a  greater  in- 
jury to  the  public  than  to  threaten  an  innocent  one,  for  the  reason 
that  the  object  is  likely  to  be  obtained,  and  the  result  is  the  conceal- 
ment and  compounding  of  felonies  to  the  injury  of  the  state.  The  fact 
that  the  defendant  believed  in  the  complainant's  guilt  is  no  defense 
and  is  not  even  a  mitigating  fact."-" 

^People  V.  Choynski,  95  Cal.  640,  -' Kistler  v.   State,   64   Ind.   371. 

30  Pac.  791;  Motsinger  v.  State,  123  ==  Mann  v.  State,  47  Ohio  St.  556, 

Ind.    498,   24    N.   E.    342;    Elliott  v.  26  N.  E.  226;   Reg.  v.  Richards,  11 

State,    36    Ohio    St.    318;    Common-  Cox  Cr.  Cas.  43. 

wealth   V.   Buckley,   147   Mass.   581,  -"People  v.   Eichler,  75   Hun    (N. 

18    N.    E.    571;     People    v.    Whitte-  Y.)  26,  26  N.  Y.  S.  998. 
more.  102  Mich.  519,  61  N.  W.  13. 
Vol.  4  Elliott  Ev. — 11 


CHAPTEE  CXXXVL 


BLASPHEMY. 

Sec.  Sec. 

2889.  Generally.  2894.  Words  used  in  hearing  of  oth- 

2890.  Common  law  definitions.  ers— Proof. 

2891.  Punishable  at  common  law.  2895.  Profanity — Nuisance. 

2892.  Statutory  definition.  2896.  Words  used — Illustration. 

2893.  Character  of  language  used. 

§  2889.  Generally. — The  statutes  of  almost  every  civilized  coun- 
try make  blasphemy  or  profanity  a  crime.  But  there  is  some  di- 
versity among  these  statutes  as  to  what  constitutes  the  offense.  How- 
ever, there  are  some  general  definitions  that  are  practically  com- 
mon to  all  the  statutes;  or  rather  there  are  certain  terms  and  prin- 
ciples which  form  the  underlying  bases  of  all  the  statutory  offenses. 
The  punishment  for  blasphemy  is  not  intended  to  cause  or  compel 
a  belief  in  or  recognition  of  God  or  of  a  Supreme  Being ;  but  the  ob- 
ject and  purpose  of  the  punishment  is  to  secure  order  and  maintain 
decency,  and  to  prevent  that  which  is  offensive  to  the  general  com- 
munity and  to  a  large  portion  of  the  citizens  of  every  country.  The 
common  law  has  been  held  to  be  the  guardian,  to  a  certain  extent, 
of  the  morals  of  the  people,  and  its  object  is  to  protect  against  offenses 
which  are  openly  and  notoriously  against  public  decency  and  good 
morals.^  Legislatures  do  not  prescribe  penalties  and  courts  do  not 
inflict  punishment  for  blasphemy  on  the  theory  that  it  is  a  crime 
against  God,  but  for  the  reason  that  the  offense  is  considered  as  com- 
mitted against  man,  or  against  society,  and  that  it  tends  to  disturb 
the  public  peace.^  Courts  now  very  generally  recognize  Christianity, 
as  revealed  and  taught  by  the  Bible,  as  a  part  of  the  law  of  the  land, 
and  therefore  respect  and  protect  its  institutions  as  well  as  ta 
regulate  the  public  morals.^    "The  laws  and  institutions  of  this  state 

iGrisham  v.  State,  2Yerg.  (Tenn.)  Y.)     290;     Bell    v.    State,    1    Swan 

589;    Bell's   Case,   6  City   Hall   Rec.  (Tenn.)     42;     Updegraph    v.    Com- 

(N,  Y.)   38.  monwealth,  11   S.   &  R.    (Pa.)    394; 

=  State  v.  Chandler,  2  Har.   (Del.)  Sparhawk  v.   Union  &c.   R.  Co.,   54 

553.  Pa.  St.  401. 

'People  V.  Ruggles,  8  Johns.    (N. 

162 


103  DEFINITION.  [§§  2890,  2891. 

are  built  on  the  foundation  of  reverence  for  Christianity.  To  this 
extent,  at  least,  it  must  certainly  be  considered  as  well  settled  that 
the  religion  revealed  in  the  Bible  is  not  to  be  openly  reviled,  ridiculed 
or  blasphemed,  to  the  annoyance  of  sincere  believers  who  compose  the 
great  mass  of  the  good  people  of  the  commonwealth."* 

§  2890.  Common  law  definitions. — In  order  to  get  the  definition 
of  blasphemy,  as  in  treason,  murder,  perjury  and  many  other  crimes, 
resort  must  be  had  to  the  common  law  for  the  legal  definition.  Ac- 
cording to  some  definitions  blasphemy  "consists  in  maliciously  re- 
viling God,  or  religion."^  An  English  court  said :  "They  would  not 
suffer  it  to  be  debated  whether  defaming  Christianity  in  general  was 
not  an  offense  at  common  law ;  for  that  whatever  strikes  at  the  root  of 
Christianity  tends  manifestly  to  a  dissolution  of  the  Civil  Govern- 
ment."^ Some  writers  say :  "Blasphemy  is  any  oral  or  written  re- 
proach maliciously  cast  upon  God,  His  name,  attributes  or  religion."^ 
"In  English  law,  blasphemy  is  the  offense  of  speaking  matter  re- 
lating to  God,  Jesus  Christ,  the  Bible  or  the  Book  of  Common  Prayer, 
intended  to  wound  the  feelings  of  mankind  or  to  excite  contempt 
and  hatred  against  the  Church  by  law  established,  or  to  promote 
immorality.  According  to  some  opinions  it  is  also  blasphemy  to  speak 
words  denying  the  truth  of  Christianity  in  general,  or  the  existence 
of  God,  even  if  spoken  decently  and  in  good  faith."®  "In  criminal 
law,  to  a.ttribute  to  God  that  which  is  contrary  to  his  nature,  and 
does  not  belong  to  him,  and  to  deny  what  does;  a  false  reflection 
uttered  with  a  malicious  design  of  reviling  God."" 

§  2891.  Punishable  at  common  law. — Blackstone  says :  "The 
fourth  species  of  offenses,  therefore,  more  immediately  against  God 
and  religion,  is  that  of  blasphemy  against  the  Almighty,  by  denying 
his  being  or  providence ;  or  by  contumelious  reproaches  of  our  Savior 
Christ.  Whither  also  may  be  referred  all  profane  scoffing  at  the  holy 
scripture,  or  exposing  to  cont<^mpt  and  ridicule.    These  are  offenses 

*Zeisweiss   v.    James.    63    Pa.    St.  '2  Bishop  Cr.  Law,  §§  76.  88;  De- 

465;   Goree  v.  State,  71  Ala.  7;   An-  laney,  Ex  parte,  43  Cal.  478. 

drew  V.  New  York  Bible  &c.  Soc.,  4  '  Rap.    &    Lawr.    L.    Diet. — "Blas- 

Sandf.   (N.  Y.)    156.  phemy;"     Black     L.     Diet.— "Blas- 

'"  People  V.  Rnggles,  8  Johns.    (N.  phemy." 

Y.)  290.  ''Bouvier  L.  Diet. — "Blasphemy." 

"Rex    V.    Woolston.    2     Sir.     83 1. 
Fitzg.  64;   Taylor's  Case,  Vent.  293 


§   2892.]  BLASPHEMY.  164 

punishable  at  common  law  by  fine  and  imprisonment,  or  other  in- 
famous corporal  punishment;  for  Christianity  is  part  of  the  laws  of 
England.""  The  publication  of  a  blasphemous  libel  on  the  Old  Testa- 
ment has  been  held  to  be  indictable  offense  at  common  law.^^  Some 
cases  admit  that  Christianity  is  so  far  a  part  of  the  common  law, 
or  the  law  of  the  land,  that  the  law  will  not  permit  the  essential 
truths  of  religion  to  be  ridiculed  and  reviled,  and  that  blasphemy  was 
an  indictable  offense  at  common  law.^^ 

§  2892.  Statutory  definition. — An  early  Massachusetts  statute  pro- 
vided "that  if  any  person  shall  wilfully  blaspheme  the  holy  name  of 
God,  by  denying,  cursing  or  contumeliously  reproaching  God,  his  crea- 
tion, government  or  final  judging  of  the  world,  etc."  In  commenting 
on  this  subject  the  Supreme  Court  of  Massachusetts  said :  "In  general, 
blasphemy  may  be  described  as  consisting  in  speaking  evil  of  the  Deity 
with  an  impious  purpose  to  derogate  from  the  divine  majesty,  and  to 
alienate  the  minds  of  others  from  the  love  and  reverence  of  God.  It 
is  purposely  using  words  concerning  God,  calculated  and  designed 
to  impair  and  destroy  the  reverence,  respect  and  confidence  due  to  him, 
as  the  intelligent  creator,  governor  and  judge  of  the  world.  It  embraces 
the  idea  of  detraction  when  used  toward  the  Supreme  Being;  as 
''calumny'  usually  carries  the  same  idea,  when  applied  to  an  individual. 
It  is  a  wilful  and  malicious  attempt  to  lessen  men's  reverence  of  God, 
by  denying  his  existence,  or  his  attrilmtes  as  an  intelligent  creator, 
governor  and  judge  of  men,  and  to  prevent  their  having  confidence  in 
him  as  such."^=^  The  Pennsylvania  statute  provided  "that  whosoever 
shall  wilfully,  premeditatedly,  and  despitefully  blaspheme,  and  speak 
loosely  and  profanely  of  Almighty  God,  Christ  Jesus,  the  Holy  Spirit, 

«4  Blackstone  Comm.  59;   Upde-  76;   Reg.  v.  Bradlaugh,  15  Cox  Cr. 

graph  V.  Commonwealth,  11  S.  &  R  Cas.  217. 

(Pa.)  394;  State  v.  Chandler,  2  Har.  "Reg.    v.    Hetherington,    5    Jur. 

(Del.)    553;    Aikenhead's    Case,    13  529;Reg.  v.  Bradlaugh,   15  Cox  Cr. 

State   Tr.   918;    Williams'   Case,   26  Cas.  217;   Williams'  Case,  26  State 

State  Tr.  654;  Eaton's  Case,  31  State  Tr.  654. 

Tr.  927;    Taylor's  Case,  Vent.  293;  '=  Andrew  v.  New  York  Bible  &c. 

Rex  v.  Woolston,  2  Str.  834,  Fitzg.  Soc,  4   Sandf.    (N.  Y.)    156;    Upde- 

64;   Rex  v.  Waddington,  1  B.  &  C.  graph  v.  Commonwealth,  11  S.  &  R. 

26,'  8   E.   C.  L.   12;    Cowan   v.    Mil-  (Pa.)   394;   Vidal  v.  Girard,  2  How. 

bourn,  L.  R.,  2  Exch.  230;   Nayler's  (U.  S.)  126,  198. 

Case,  5  State  Tr.  802;   Reg.  v.  Jus-  "Commonwealth  v.  Kneeland,  20 

tice  of  Lancashire,  7   Cox  Cr.  Cas.  Pick.    (Mass.)    206;    People  v.  Rug- 

gles,  8  Johns.   (N.  Y.)  290. 


165  CHARACTER  OF  LANGUAGE  USED.   [§§  2893,  2894. 

or  the  Scriptures  of  Truth,  and  is  legally  convicted  thereof,  shall  for- 
feit, etc.'^^^ 

§  2893.  Character  of  language  used.-:-However  explicit  and  defi- 
nite the  statutes  may  be  it  is  not  always  necessary,  in  order  to  estab- 
lish the  offense,  to  prove  that  the  name  of  the  Deity  or  any  appellation 
thereof  was  used.  It  has  been  held  that  where  "any  words  importing 
an  imprecation  of  divine  vengeance  or  implying  divine  condemnation 
so  used  as  to  constitute  a  public  nuisance  would  suffice."^''  And  the 
Supreme  Court  of  Tennessee  said:  "A  single  act  of  profanity  would 
not  ordinarily  be  sufficient  to  convict  a  defendant.  But,  as  we  have 
said,  even  a  single  oath,  either  by  its  terms,  its  tone  or  manner,  or  the 
circumstances  under  which  it  was  uttered,  might  be  a  nuisance."^® 
In  an  indictment  for  blasphemy,  it  must  be  cliarged,  and  the  proof 
must  show  that  the  words  were  spoken  profanely.  This  was  held  to 
be  the  gist  of  the  offense.^' 

§  2894.  Words  used  in  hearing  of  others — Proof. — It  is  not  suf- 
ficient to  establish  the  offense  of  blasphemy  to  prove  the  speaking  of 
the  words  only.  And  it  has  been  held  that  a  person  could  not  be  con- 
victed on  such  an  indictment  on  proof  of  his  confession  that  he  had 
made  use  of  the  words  charged  in  the  indictment.  In  order  to  estab- 
lish the  offense  the  state  must  prove  that  the  defendant  used  the  lan- 
guage alleged  to  be  blasphemous  and  that  it  was  so  used  in  the 
presence  and  hearing  of  other  persons.^  ^  The  rule  adopted  by  a  re- 
cent ease  is  "that  profane  swearing  and  cursing  in  a  loud  and  boisterous 
tone  of  voice,  in  the  presence  and  hearing  of  citizens  of  the  common- 
wealth passing  and  repassing  on  the  public  streets  and  highways  of 

"  Updegraph     v.     Commonwealth,  "  Commonwealth     v.     Spratt,     14 

11  S.  &  R.    (Pa.)    394;   a  very  com-  Phila.     (Pa.)     365;     Updegraph     v. 

plete   collection   of   the   statutes   of  Commonwealth,    11   S.    &   R.    (Pa.) 

the  various  states  on  the  subject  of  394. 

blasphemy,   together  with  cases  on  '^  People    v.    Porter,    2    Park.    Cr. 

the  sufficiency  of  the  indictment  and  Cas.   (N.  Y.)   14;   State  v.  Chandler, 

the    constitutionality    of    such    stat-  2  Har.    (Del.)    553;    Goree  v.  State, 

utes  is  found  in  the  notes  in,  22  T^.  71   Ala.   7;    State  v.    Pepper,   68   N. 

R.  A.  353.  Car.    259;    State   v.   Barham,    79   N. 

"Gaines  v.   State,   75  Tenn.   410:  Car.    646;    Commonwealth   v.   Linn, 

Isom  V.   State    (Tenn.)    Sept.   Term  158  Pa.  St.  22,  27  Atl.  843,  22  L.  R. 

1880;    Holcomb  v.  Cornish,  8  Conn.  A.     353;     Bell    v.     State,     1     Swan 

375.  (Tenn.)     42;     Young    v.    State,    78 

"  Young  V.  State,  78  Tenn.  165.  Tenn.  165. 


§    2895.]  BLASPHEMY.  166 

the  commonwealth  to  such  an  extent  as  to  be  a  common  nuisance  to  all 
citizens  being  present  and  hearing  the  same,  is  an  indictable  offense  at 
common  law."^^  But  under  some  statutes  in  prosecutions  for  blas- 
phemy or  profanity  it  is  not  necessary  to  prove  that  the  profane  lan- 
guage was  used  publicly.-"  Under  a  statute  which  makes  it  a  crime 
to  "profanely  swear  and  curse  in  a  public  place,"  it  has  been  correctly 
held  that  "the  indictment  should  set  out  and  the  proof  should  show  the 
words  spoken."^^  And  according  to  the  rule  in  some  states  a  single  act 
of  profanity,  or  profane  swearing,  is  punishable  as  against  good 
morals.-^ 

§  2895.  Profanity — Nuisance. — According  to  the  statutes  and  de- 
cisions in  some  states  it  must  be  stated  in  the  indictment  and  proved 
on  the  trial  that  the  profanity  charged  was  uttered  in  the  hearing  of 
divers  persons,  and  the  proof  must  be  sufficient  to  show  that  the  act 
constituted  a  nuisance.  As  said  in  one  case :  "To  render  the  crime  in- 
dictable, the  acts  must  be  so  repeated  and  public  as  to  become  a  nui- 
sance and  inconvenience  to  the  public,  for  they  then  constitute  a  pub- 
lic nuisance.  ...  It  has  been  repeatedly  decided  by  this  court 
that  profane  swearing  is  not  punishable  by  indictment  in  this  state 
when  committed  in  single  acts ;  but  to  make  it  so,  as  has  been  intimated 
by  several  judges,  it  must  be  perpetrated  so  publicly  and  repeatedly 
as  to  become  an  annoyance  and  inconvenience  to  the  citizens  at 
large."^^  The  Supreme  Court  of  Tennessee  adopted  the  same  rule  and 
held  that  whenever,  upon  a  trial  under  a  sufficient  indictment,  there 
is  evidence  that  the  swearing,  or  profane  language  was  a  nuisance  to 
the  public,  the  offense  is  made  out."    From  these  holdings  it  must  not 

'» Commonwealth     v.     Linn,     158  ^  State  v.   Jones,  9   Ired.   L.    (N. 

Pa.  St.  22,  27  Atl.  843,  22  L.  R.  A.  Car.)   38;   State  v.  Deberry,  5  Ired. 

353.  L.    (N.  Car.)    371;    State  v.  Brown. 

-» Bodenhamer    v.    State,    60    Ark.  3  Mur.  (N.  Car.)  224;  State  v.  Wal- 

10,  28   S.  W.   507;    Taney  v.   State,  ler,  3  Mur.   (N.  Car.)   229;   State  v. 

9  Ind.  App.  46,  36  N.  E.  295.  Baldwin,    1    Dev.    &    B.     (N.    Car.) 
-1  Walton   V.    State.   64    Miss.    207,  195;  State  v.  Ellar,  1  Dev.  (N.  Car.) 

8  So.  171;   State  v.  Freeman,  63  Vt.  267;  State  v.  Pepper,  68  N.  Car.  259; 

496,   22   Atl.   621;    State   v.   Ratliff,  State  v.  Powell,  70  N.  Car.  67;   De- 

10  Ark.  530;  Updegraph  v.  Common-  laney.  Ex  parte,  43  Cal.  478. 
wealth,  11  S.  &  R.    (Pa.)   394;   Rex  ^^  State     v.     Graham,     3     Sneed 
V.  Sparling,  1  Str.  497;  Rex  v.  Pop-  (Tenn.)     134;     State    v.    Steele,     3 
plewell,    1    Str.    686;    2    Bishop    Cr.  Heisk.  (Tenn.)  135;  Gaines  v.  State, 
Proc,  §  123.  75   Tenn.    410;    Young   v.    State,    78 

==^Delaney,  Ex  parte,  43  Cal.  478.     Tenn.   165. 


1G7  WORDS    HELD    BLASPHEMOUS.  [§    2S9G. 

be  understood  that  it  would  be  required  to  prove  a  succession  of  sepa- 
rate and  distinct  acts  or  occasions  of  profanity.  Such  a  rule  would 
defeat  the  purpose  of  all  such  statutes.  But  consistently  with  these 
cases,  where  the  proof  shows  that  on  a  single  occasion,  the  continued 
and  public  use  of  profane  oaths  frequently  and  boisterously  repeated 
for  the  space  of  five  minutes,  was  held  sufficient  under  an  indictment 
charging  a  public  nuisance.^^  Under  the  common  law,  as  held  and 
administered  in  some  of  the  states,  in  order  to  establish  a  case  of  pro- 
fanity the  proof  must  show  that  it  was  so  public  as  to  be  a  nuisance.-' 

§  2896.  Words  used — Illustrations. — The  general  definitions  of 
blasphemy  must  be  relied  on  principally  as  precedents.  Of  the  many 
cases  sustaining  indictments  for  such  offense,  very  few  of  them  pro- 
fess to  give  the  language  used.  Some,  however,  have  stated  the  sub- 
stance of  the  charge.  Thus  in  one  case,  it  was  held  a  sufficient  charge 
of  blasphemy  where  the  accused,  among  other  things,  used  in  substance, 
the  following :  "That  the  holy  scriptures  were  a  mere  fable,  that  they 
were  contradictions,  and  that  although  they  contained  a  number  of 
good  things,  yet  they  contained  a  great  many  lies."-^  In  another  case 
it  was  held  sufficient  where  the  accused  used  the  wicked  and  blas- 
phemous words,  to  wit,  "Jesus  Christ  was  a  bastard,  and  his  mother 
must  be  a  whore.""^  Another  expression  held  sufficient  was  as  fol- 
lows: "That  the  virgin  Mary  was  a  whore  and  Jesus  Christ  was  a 
bastard."-^  Another  charge  was  held  sufficient  where  it  stated  that 
the  accused  did  "unlawfully  and  profanely  curse,  swear,  aver  and  im- 
precate by  and  in  the  name  of  God,  Jesus  Christ  and  the  Holy  Ghost, 
by  then  and  there  unlawfully  saying  "^God  damned.'  "^° 

'"^  State  V.  Chrisp,  85  N.  Car.  528;  ^  Updegraph     v.     Commonwealth, 

State  v.  Jones,  9  Ired.  L.   (N.  Car.)  11  S.  &  R.  (Pa.)  394. 

38;  State  v.  Brewington,  84  N.  Car.  "**  People  v.  Ruggles,  8  Johns.    (N. 

783.  Y.)    290. 

^1  Archibald  PI.  &  Pr.  607;  Clark  =' State  v.  Chandler,  2  Har.  (Del.) 

Cr.  Law  303;    2  Wharton  Cr.   Law,  553. 

§  1431;    State  v.  Jones,  9   Ired.   L.  =°  Taney  v.  State,  9  Ind.  App.  46, 

(N.  C.)   38;    State  v.  Powell,  70  N.  36  N.  E.  295. 
Car.  67;  Gaines  v.  State,  75  Tenn. 
41 


CHAPTER  CXXXVII. 


BRIBERY. 


Sec. 

2897.  Generally. 

2898.  Burden  of  proof. 

2899.  Questions   of   law  or   fact. 

2900.  Identity. 

2901.  Intent. 

2902.  Evidence     for     prosecution — 

Other  acts  of  accused. 

2903.  Documentary  evidence. 


Sec. 

2904.  Financial  dealings  of  parties. 

2905.  What    need    not   be    proved — 

Variance. 

2906.  Accomplices  —  Decoy  —  Con- 

spirators. 

2907.  Confessions  and   admissions. 

2908.  Defenses. 


§  2897.  Generally. — Bribery  has  been  defined  as  the  voluntary 
giving  or  receiving  of  anything  of  value  in  corrupt  payment  for  an 
official  act  done  or  to  be  done.^  Another  definition  that  has  frequently 
been  approved  is  that  bribery  is  the  receiving  or  offering  any  undue  re- 
ward by  or  to  any  person  whatsoever,  whose  ordinary  profession  or 
business  relates  to  the  administration  of  public  justice,  in  order  to  in- 
fluence his  behavior  in  office,  and  incline  him  to  act  contrary  to  the 
known  rules  of  honesty  and  integrity.^  But  even  at  common  law  a 
similar  giving,  offering  or  receiving  of  money  or  any  undue  reward  to 
an  election  officer  or  even  to  a  voter  to  corruptly  influence  him  might 
constitute  bribery  f  and,  under  some  of  the  modern  statutes,  the  term 
has  a  still  broader  meaning.* 


^2  Bishop  Cr.  Law,  §  85;  State  v. 
Pritchard,  107  N.  Car.  921,  12  S.  E. 
50;  Honaker  v.  Board  of  Education, 
42  W.  Va.  170,  175,  24  S.  E.  544,  57 
Am.  St.  847,  32  L.  R.  A.  413;  as  to 
instigating  and  soliciting  bribe,  see 
Note  III.  25  L.  R.  A.  434. 

=  1  Russell  Crimes,  154;  Watson  v. 
State,  29  Ark.  299,  302;  State  v. 
Davis,  2  Pen.  (Del.)  139,  141,  45 
Atl.  394;  Walsh  v.  People,  65  111. 
58,  65,  16  Am.  R.  569;  see  also, 
State  v.  Miles,  89  Me.  142,  36  Atl. 
70;  as  to  embracery,  see,  1  Russell 


Crimes  264;  1  Hawkins  P.  C,  Chap. 
85,  §  7;  4  Blackstone  Comm.  140. 

^Rex  V.  Plympton,  2  Ld.  Raym. 
1377;  Russell  Crimes  154;  Simpson 
V.  Yeend,  L.  R.  4  Q.  B.  626;  Bayn- 
tun  V.  Cattle,  1  Mood.  &  R.  265;  see 
also  note  in,  5  L.  R.  A.  217. 

^  See,  United  States  v.  McBosley, 
29  Fed.  897;  Thompson  v.  State,  16 
Ind.  App.  84,  44  N.  E.  763;  State  v. 
Williams,  136  Mo.  293,  38  S.  W.  75 
(bribery  of  witness) ;  Berry  v. 
Hull,  6  N.  Mex.  643,  30  Pac.  936. 


168 


1G9  BURDEN  OF  PROOF.  [§§   2898-2900. 

.§  2898.  Burden  of  proof. — In  propcc-utions  for  bribery  as  in  other 
criminal  cases,  tlic  accused  is  presumed  to  be  innocent,  and  the  bur- 
den of  establishing  his  guilt  by  proving  all  the  necessary  elements  of 
the  offense  is  upon  the  state.^  Thus,  the  state  must  generally  prove 
that  a  corrupt  offer  or  solicitation  to  bribe  was  made,  or  an  agreement 
to  give,  receive  and  accept  a  bribe,  and  that  such  a  proposal  or  agree- 
ment was  made  to,  by  or  with  an  officer  or  a  person  at  the  time  acting 
in  an  official  capacity.^  And,  as  in  other  prosecutions  for  crime,  the 
defendant's  guilt  must  be  proved  beyond  a  reasonable  doubt. 

§  2899.  Questions  of  law  or  fact. — What  is  necessary  in  law  to 
constitute  bribery  is  a  question  of  law  for  the  court.  But  whether,  un- 
der the  circumstances,  bribery  has  been  committed  by  the  accused  is  a 
question  of  fact  for  the  jury."^  So,  the  question  as  to  whether  the 
promise  or  payment  was  made  in  good  faith  for  a  lawful  purpose  is  a 
question  of  fact  for  the  jury.®  As  elsewhere  shown,  however,  there  are 
a  few  jurisdictions  in  which  the  jurors  are  made  judges  of  the  law  as 
well  as  the  facts.  Yet,  even  in  such  jurisdictions,  the  court  instructs 
as  to  the  law.  And  it  has  been  held  that  whether  an  officer  is  one  who 
comes  within  the  statute  is  a  question  of  law  for  the  court.^ 

§  2900.  Identity. — The  identity  of  the  accused  as  a  guilty  party 
must,  of  course,  be  shown  either  by  direct  or  circumstantial  evidence, 
but  if  he  is  charged  with  accepting  a  bribe,  it  seems  that  the  identity 
of  the  person  offering  the  bribe  need  not  be  proved.    It  has  been  held 

"Yee    Gee,    In    re,    83    Fed.    145;  169,  20  Pac.  396;   Commonwealth  v. 

White  V.  State,  103  Ala.  72,  16  So.  Donovan.    170   Mass.   228,    49    N.    E. 

63;    Commonwealth  v.   Murray,   135  104;    State  v.   Geyer,  3   Ohio   N.   P. 

Mass.  530;  State  v.  Graham,  96  Mo.  242,  3  Ohio  Leg.  N.  431;    Common- 

120,  8  S.  W.  911;  State  v.  Butler,  178  wealth  v.  Petroff,   2   Pearson    (Pa.) 

Mo.'  272,   77   S.   W.    560;    Devlin   v.  534,  8  Wkly.  Notes  Cas.   (Pa.)   212; 

New  York,  4  Misc.    (N.  Y.)    106,  23  State  v.   Smith.  72  Vt.  366,  48  Atl. 

N.  Y.  S.  888.  647. 

"Yee    G^e     In    re,    83    Fed.    145;  Mohnson    v.    Commonwealth,    90 

State  V.  Graham.  96  Mo.   120,   8  S.  Ky.  53,  13  S.  W.  520. 

W.    911;    State  v.   Meysenburg,   171  'People  v.  Jaehne,  103  N.  Y.  182, 

Mo.  1,  71  S.  W.  229;  but  under  the  8  N.  E.  374;  Diggs  v.  State,  49  Ala. 

Missouri  statute  against  offering  a  311;    Messer  v.   State,   37   Tex.   Cr. 

gift  to  influence  a  juror,  an  actual  App.    635,    40    S.   W.   488;    but   see, 

tender  thereof  is  not  required  to  be  State  v.   Wynne,   118  N.   Car.   1206, 

shown;  State  v.  Woodward,  182  Mo.  24  S.  E.  216,  and  compare.  State  v. 

391,  81  S.  W.  857.  McDonald,  106  Ind.  233,  6  N.  E.  607. 

'People   V.    Fong   Ching,    78    Cal. 


§§  2901,  2902.]  BRIBERY.  170 

sufficient  in  such  a  case  if  the  agreement  to  accept  a  bribe  is  proved 
with  some  person,  no  matter  whom.^° 

§  2901.  Intent. — Although  proof  of  a  corrupt  intent  alone  is  not 
sufficient  to  support  a  prosecution  for  bribery,  yet  when  such  intent  is 
manifested  by  overt  acts,  such  as  a  promise  to  give  the  officer  a  reward 
as  a  premium  to  induce  him  to  act  contrary  to  his  duty,  proof  of  that 
fact  is  generally  sufficient.^^  But  while  it  may  be  inferred  from  cir- 
cumstances, yet  if  a  corrupt  intent  on  the  part  of  the  officer  receiving 
or  of  the  person  offering  a  bribe  is  essential  to  constitute  the  crime 
it  must  be  made  to  appear  beyond  a  reasonable  doubt. ^^  It  has  also 
been  held  that  where  the  charge  is  for  receiving  money  for  a  promise 
not  to  perform  a  duty  required  by  statute,  evidence  on  the  part  of  the 
defendant  of  his  ignorance  of  the  duty  is  relevant  and  material  as 
tending  to  support  his  claim  that  he  made  no  promise  not  to  perform 
the  statutory  duty.^^ 

§  2902.  Evidence  for  prosecution — Other  acts  of  accused. — It  is 
usually  competent  to  show  the  various  steps  taken  by  the  accused  in 
committing  the  crime,  including  preliminary  negotiations  with  the 
other  parties,^'*  to  the  unlawful  transaction  and  his  acts  subsequent  to 
the  offense  charged,  which  tend  to  confirm  that  charge,  by  showing 
that  he  carried  out  his  promise  or  did  what  was  naturally  to  be  ex- 
pected if  bribed  as  alleged,  or  the  like.^^  Other  acts  of  bribery  remote 
in  time  and  unconnected  with  the  offense  charged  are  inadmissible  in 
evidence,^"  but  where  the  prosecution  is  for  offering  to  bribe  an  officer, 

^«  People  V.  O'Neil,  109  N.  Y.  251,  v.  Meysenburg,  171  Mo.  1,  71  S.  W. 

16  N.  E.   68.  229. 

"  People  v.  Markham,  64  Cal.  157,         "  State  v.  Gardner,  88  Minn.  130, 

30  Pac.  620.  49  Am.  R.  700.  92  N.  W.  529;   People  v.  O'Neil,  109 

"State  v.  Pritchard,  107  N.  Car.  N.   Y.   251,   16  N.  E.   68;    People  v. 

921,   12   S.   E.   50;    see   also,   People  Kerr,  6  N.  Y.  S.  674;  but  see.  People 

V.  Kerr,   6  N.   Y.   S.   674;    White  v.  v.  Bissert,  71  App.  Div.  (N.  Y.)  118 

State,  103  Ala.  72,   16  So.  63,   com-  75  N.  Y.  S.  630. 

pare.  Commonwealth  v.  Murray,  135         "  People  v.  Sharp,  107  N.  Y.  427, 

Mass.  530.  14  N.  E.  319,  1  Am.  St.  851;  Guthrie 

"Newman  v.  People,  23  Colo.  300,  v.  State,  16  Neb.  667,  21  N.  W.  455; 

47  Pac.  278.     But  it  was  also  held  see  also.  State  v.  Gardner,  88  Minn. 

that  ignorance  of  the  law  would  not  130,  92  N.  W.  529;  State  v.  Meysen- 

constitute  a  defense.  burg,  171  Mo.  1,  71  S.  W.  229;  Peo- 

'*  State  V.  Durnam,  73  Minn.  150,  pie  v.  Hurley,  126  Cal.  351,  58  Pac. 

75  N.  W.  1127;    State  v.   Smith,   72  814. 
Vt.  366,  48  Atl.  647;   see  also,  State 


171  DOCUMENTARY    EVIDENCE.  [§    2903. 

subsequent  offers  made  to  the  same  officer,  or  bribes  in  regard  to  the 
same  subject  matter,  or  part  of  the  same  system  are  admissible.^^  And 
it  may  be  said  generally  with  some  degree  of  accuracy  that  all  proper 
testimony  going  to  show  that  one  charged  with  receiving  a  bribe  did 
actually  receive  it  is  admissible.^^  But  on  the  trial  of  a  prosecution 
for  offering  a  witness  a  bribe  to  testify  that  he  had  seen  some  persons 
attack  the  person  accused  of  murder,  and  that  "the  latter  had  shot  in 
among  them,"  it  was  held  error  to  permit  the  introduction  by  the 
prosecution  in  the  bribery  case  of  all  the  details  of  the  arrest  of  the 
accused  and  his  conduct,  such  as  that  the  alleged  murderer  attempted 
to  shoot  the  officer,  had  several  pistols  in  his  possession  and  wore  a 
coat  of  mail,  although  it  was  competent  to  introduce  evidence  of  the 
general  nature  of  the  crime  in  connection  with  which  the  offer  was 
made,  in  order  to  prove  the  materiality  of  the  alleged  false  testimony.^^ 

§  2903.  Documentary  evidence. — A  legislative  journal  has  been 
held  admissible  to  show  the  pendency  of  the  matter  with  regard  to 
which  a  member  of  the  legislature  was  charged  with  bribery  ;^'*  and  so 
has  the  record  of  a  case  in  which  the  defendant  was  charged  with  at- 
tempted bribery  of  jurors,  to  show  that  the  cause  was  pending,-^  and 
that  the  jurors  served  in  such  case.-^  So,  it  has  been  held  proper  to 
introduce  a  previous  indictment  for  the  same  offense,  which  was 
quashed,  to  show  that  the  pending  prosecution  is  not  barred  by  the 
statute  of  limitations.^^  So,  a  letter  to  the  accused  bearing  upon  and 
relevant  to  the  question  of  bribery  is  admissible  in  evidence,  where 
a  witness  testified  that  the  accused  showed  it  to  him,  and  stated  that 
warrants  therein  listed  were  issued  by  him  in  consideration  of  money 
received  from  the  person  in  wliose  favor  they  were  issued.^*  And 
where  the  charge  was  for  offering  to  receive  a  bribe,  letters  from  an 
agent  to  his  employer  communicating  the  facts  bearing  upon  the  is- 
sue, being  an  incident  of  the  business,  and  contemporaneous  therewith, 
were  admitted  as  a  part  of  the  res  gestae.-^ 

"Rath  V.  State,  35  Tex.  Cr.  App.  "People  v.  Northey,  77  Cal.   618, 

142,  33  S.  W.  229;  Guthrie  v.  State,  19  Pac.  865,  20  Pac.  129. 

16  Neh.  667,  672,  21  N.  W.  455.  -'■  White  v.  State,  103  Ala.  72,   16 

"People  V.   McGarry,    (Mich.)    99  So.    63. 

N.  W.  147.  =*  Glover    v.    State,    109    Ind.    391, 

"  People   V.   Fong   Ching.    78    Cal.  10  N.  E.  282. 

169,   20   Pac.   396.  =^  State  v.  Desforges,  48  La.  Ann. 

="  State  v.  Smalls,  11  S.  Car.  262.  73,    18    So.    912;    see    also,    State   v. 

=' White  V.  State.  103  Ala.  72,   16  Durnam,    73    Minn.    150,    75    N.    W. 

So.    63.  1127. 


§§  2904,  2905.]  bribery.     •  172 

§  2904.  Financial  dealings  of  parties. — On  the  trial  of  a  prosecu- 
tion for  accepting  a  bribe  the  business  conditions  and  financial  trans- 
actions of  the  accused  may  be  shown.  ^"^  So,  in  a  prosecution  for  giving 
a  bribe,  evidence  is  admissible  to  show  that,  at  about  the  time  of  the 
alleged  bribery,  the  corporation,  in  whose  interest  the  bribe  was  given, 
raised  the  required  amount  of  money,  for  which  there  was  no  apparent 
necessity  for  legitimate  purposes,  and  that  it  failed  to  account  there- 
for, and  the  money  did  not  appear  to  have  been  used  for  legitimate 
ends,  and  that  the  alleged  receiver  of  the  bribe  shortly  after  the  trans- 
action paid  off  a  large  mortgage  with  bills  of  a  large  denomination.^^ 

§  2905.  What  need  not  be  proved — Variance. — Under  a  statute 
making  it  an  offense  to  offer  a  gift  to  corruptly  influence  a  juror,  it 
has  been  held  unnecessary  to  prove  an  actual  tender  of  the  gift.^*  So, 
on  the  trial  of  a  prosecution  for  giving  a  bribe,  it  has  been  held  un- 
necessary to  prove  that  the  person  bribed  made  any  promise  as  to  his 
future  action.^®  Something  of  value  must  usually  be  shown  to  have 
been  given,  offered  or  tendered,^"  but  it  is  not  necessary  to  prove  the 
value  of  the  bribe  precisely  as  laid  in  the  indictment.^^  It  is  generally 
sufficient  merely  to  prove  that  it  is  of  some  value.^^  But  the  variance 
in  the  description  of  the  alleged  bribe  may  be  so  great  as  to  be  fatal.^" 
It  has  also  been  held  that  evidence  that  the  bribe  was  paid  on  some 
day  or  about  the  time  charged,  although  not  on  the  exact  day,  is  suf- 
ficient.^* And  it  is  not  necessary  to  introduce  record  evidence  as  to 
the  election  or  appointment  and  qualification  of  the  officer  charged  to 
have  been  bribed  by  the  accused. ^^ 

=' People  V.  O'Neil,  109  N.  Y.  251,  =' Diggs    v.    State,    49    Ala.    311; 

16  N.  E.  68;    State  v.  Smalls,  11  S.  Watson  v.    State.   39   Ohio  St.   123; 

Car.   262;    but  see  where  they  cov-  People  v.    Salsbury,    (Mich.)    96  N. 

ered  long  period,  People  v.  Stephen-  W.  936. 

son,  91  Hun  (N.  Y.)  613,  36  N.  Y.  S.  =^  Commonwealth  v.  Donovan,  170 

595.  Mass.   228,  49   N.   E.   104;    see  also, 

=' People  V.  Kerr,  6  N.  Y.  S.  674;  People  v.   Salsbury,    (Mich.)    96   N. 

see  also,  People  v.  McGarry,  (Mich.)  W.  926. 

99  N.  W.  147.  ^=  State  v.  Meysenburg,  171  Mo.  1, 

^  State  V.  Miller,  182  Mo.  370,  81  71  S.  W.  229. 

S.  W.  867;   State  v.  Woodward,  182  ^'^  People  v.  McGarry,    (Mich.)    99 

Mo.  391.  81  S.  W,  857.  N.  W.  147. 

"'Commonwealth  v.  Donovan,  170  ''Rath  v.  State,  35  Tex.  Cr.  App. 

Mass.  228,  49  N.  E.  104.  142,    33    S.    W.    229. 

■'"Watson    V.    State,    39    Ohio    St. 
123;  People  v.  Kerr,  6  N.  Y.  S.  674. 


173  ACCOMPLICES — CONFESSIONS  [§§    290G,   2907. 

§  2906.  Accomplices — Decoys — Conspirators. — The  fact  that  a  wit- 
ness is  a  paid  "spotter"  or  has  acted  as  a  detective  or  decoy  apparently 
entering  into  the  criminal  plan  for  the  purpose  of  detecting  and  ex- 
posing it  does  not  itself  render  his  evidence  unworthy  of  belief  as  a 
matter  of  law/*'  but  it  has  been  held  that  the  defendant  may  fully 
cross-examine  him  as  to  his  connection  with  the  case,  and  as  to  the 
names  of  all  who  were  concerned  in  the  alleged  detection.^^  It  has 
also  been  held  that  the  subsequent  disclosure  by  a  detective  to  his  su- 
perior officer,  in  such  a  case,  is  admissible  to  show  that  he  was  not  in 
reality  an  accomplice.^®  The  general  subject  of  accomplices  and  cor- 
roboration of  their  evidence  is  elsewhere  treated,  and  it  is  sufficient  in 
this  connection  to  refer  to  a  few  of  the  recent  cases. ^^  It  is  generally 
necessary,  in  order  to  make  the  declarations  of  alleged  co-conspirators 
competent  and  admissible  in  bribery  cases,  to  show  the  conspiracy  and 
some  connection  with  the  accused  as  such.^°  Indeed,  even  when  a  con- 
spiracy is  shown,  such  declarations  have  been  held  inadmissible  against 
a  defendant  who  is  on  trial  for  a  separate  and  distinct  offense.*^ 

§  2907.  Confessions  and  admissions. — The  subject  of  confessions 
has  been  fully  treated  in  another  volume,  but  a  reference  to  two  or  three 
matters  and  authorities  may  not  be  out  of  place  in  this  connection.  Al- 
though here,  as  elsewhere,  the  general  rule  is  that  there  must  be  evi- 
dence of  the  corpus  delicti  aside  from  the  confession,  yet  it  has  been 
held  that  if,  in  addition  to  the  confessions,  there  is  proof  of  circum- 
stances which,  although  they  might  be  susceptible  of  an  innocent  con- 
struction, are,  nevertheless,  calculated  to  suggest  the  commission  of  the 
crime  for  the  explanation  of  which  the  confession  furnished  the  key,  it 
should  be  allowed  to  go  to'the  jury.*^  It  has  also  been  held  that  on  the 
trial  of  a  prosecution  against  a  member  of  the  school  board  for  bribery, 
admissions  by  him  to  the  effect  that  he  had  drawn  warrants  for  certain 
amounts  at  certain  times,  such  admissions  being  endorsed  on  the  back 

'« Wellcome,   In  re,   23   Mont.   450,  N.  E.  68;  Rath  v.  State,  35  Tex.  Cr. 

59  Pac.  445.  App.  142,  33  S.  W.  229. 

"People   V.    Liphardt,    105    Mich.  ""People  v.  Sharp,  107  N.  Y.  427, 

80.  62  N.  W.  1022.  14  N.  E.  319,  1  Am.  St.  851. 

^Reg.  v.   Dewar,   26   Ont.    (Can.)  **  State  v.  Gardner,  88  Minn.  130, 

512.                              '  92  N.  W.  529. 

"See,  People  v.   Bissert,   71  App.  "=  People  v.  Jaehne,  103  N.  Y.  182, 

Div.    (N.  Y.)    118,  75  N.  Y.   S.   630;  8  N.  E.   374. 
People  V.  O'Neil,  109  N.  Y.  251,  16 


§    2908,]  BRIBEEY.  174 

of  a  letter  of  inquiry  addressed  to  him,  when  taken  in  connection  with 
the  other  established  facts  of  the  case,  are  competent.*^ 

§  2908.  Defenses. — Ignorance  of  the  law  is  not  a  defense  in  brib- 
ery cases  any  more  than  in  other  criminal  cases,  and  it  has  been  held 
that  it  was  no  defense  for  an  officer  charged  with  having  accepted  a 
bribe  under  an  agreement  not  to  seize  gambling  devices  to  show  that 
he  was  ignorant  of  a  statute  making  it  his  duty  to  seize  them;  and 
further,  that  it  was  no  defense  that  the  prosecuting  witness  gave  the 
bribe  and  procured  such  omission  of  duty.**  Nor  can  the  officer  ques- 
tion the  constitutionality  of  the  statute,*^  or  the  like.  Evidence  of  good 
character  and  reputation  is  admissible  in  a  prosecution  for  bribery, 
but  it  is  no  defense  to  the  crime  where  the  proof  establishes  its  com- 
mission by  the  accused  as  a  fact.***  It  is  not  competent  for  a  witness 
to  testify  that  he  had  learned,  since  the  arrest  of  the  accused,  that  his 
reputation  before  his  arrest  was  bad.*^  In  a  prosecution  for  bribery 
where  a  specific  intent  is  the  essence  of  the  crime  intoxication  may  be 
shown  in  a  proper  case,  and  if  drunkenness  is  set  up  as  a  defense  in 
such  a  case  the  character  and  extent  of  the  drunkenness,  the  conduct 
of  the  defendant  and  any  other  facts  tending  to  show  that  he  did  not 
know  what  he  was  doing  may  generally  be  shown,  and  the  question  left 
to  the  jury.*^  But  to  permit  another  witness  to  state  that  the  accused 
was  so  drunk  that  he  did  not  know  what  he  was  doing  would  be  in  vio- 
lation of  the  rule  forbidding  witnesses  to  state  mere  opinions  or  con- 
clusions which  are  for  the  jury  to  draw.*^ 

« Glover   v.    State.    109    Ind.    391,  v.  State,  109  Ind.  391,  10  N.  E.  282; 

10   N.  E.   282.  Gilchrist    v.    Schmidling,    12    Kans. 

"Newman  v.  People,  23  Colo.  300,  263;  Moseley  v.  State,  25  Tex.  App. 

47  Pac.  278;   see  also  as  to  instiga-  515,  8  S.  W.  652. 

tion    by   others    being    no    defense,  *"  Wellcome,   In  re,  23  Mont.  450, 

People   V.    Liphardt,    105    Mich.    80,  59  Pac.  445. 

62  N.  W.  1022.  "People   v.   Fong   Ching,   78   Cal. 

*^  Newman  v.  People,  23  Colo.  300,  169,  20  Pac.  396. 

47  Pac.   278;    State  v.  Gardiner,  54  ^^  White  v.  State,  103  Ala.  72,  16 

Ohio  St.  24,  42  N.  B.  999,  31  L.  R.  So.  63. 

A.   660;    see  also.  State  v.   Duncan,  "White  v.  State,  103  Ala.  72,  16 

153  Ind.  318,  54  N.  E.  1066;  Glover  So.  63. 


CHAPTER  CXXXVIII. 


BURGLARY. 


-Definition  and  ele- 


Sec. 

2909.  Generally- 

ments. 

2910.  Burden  of  proof  and  presump- 

tions. 

2911.  Questions  of  law  or  fact. 

2912.  Evidence  of  breaking  and  en- 

tering. 


Sec. 

2913.  Evidence  as  to  dwelling  house 

and   ownership. 

2914.  Evidence  as  to  time. 

2915.  Evidence  as  to  intent. 

2916.  Identification. 

2917.  Other  offenses.  ' 

2918.  Possession  of  stolen  property. 

2919.  Defenses. 


§  2909.  Generally — Definition  and  elements. — Burglary  is  the 
breaking  and  entering  the  house  of  another  in  tlic  night-time  with  the 
intent  to  commit  a  felony,  whether  the  felony  is  actually  committed  or 
not.^  The  elements  to  be  proved  at  common  law  are:  A  felonious 
breaking  and  entering;  that  the  building  was  a  dwelling-house;  that 
the  act  occurred  in  the  night-time;  an  intention  to  commit  some 
felony  in  the  house.-  But  under  many  of  the  modern  statutes  other 
buildings  are  included,  as  well  as  dwelling-houses,  and  under  some 
of  them  the  breaking  and  entry  may  be  in  the  day-time  as  well  as  at 
night,  while,  under  others,  a  breaking  is  not  essential. 

§  2910.  Burden  of  proof  and  presumptions. — The  presumption  of 
innocence  existing,  the  burden  is  upon  the  prosecution  to  show  the 
guilt  of  the  accused  beyond  a  reasonable  doubt,'''  and,  according  to  the 
better  and  prevailing  rule,  this  burden  remains  upon  the  prosecution 
throughout  the  trial.*   The  prosecution  must,  in  the  absence  of  a  stat- 


^  Russell  Crimes,  1;  Anderson  v. 
State,  48  Ala.  665,  666,  17  Am.  R. 
36;  McVey,  In  re,  50  Neb.  481,  70 
N.  W.  51;    2  Am.  St.  383,  note. 

-See,  State  v.  Wilson,  1  N.  J.  L. 
502,  1  Am.  Dec.  216,  and  authori- 
ties cited  in  notes  to  the  next  sec- 
tion; also,  see  2  Am.  St.  383,  note. 

^People  v.  Winters,  93  Cal.  277, 
28   Pac.    946;    People   v.   Flynn,    73 


Cal.  511,  15  Pac.  102;  State  v.  Mor- 
ris, 47  Conn.  179;  State  v.  Manluff, 
1  Houst.  (Del.)  208;  Farley  v.  State. 
127  Ind.  419,  26  N.  E.  898;  Coleman 
V.  State,  26  Tex.  App.  252,  9  S.  W. 
609. 

^Farley  v.  State,  127  Ind.  419, 
26  N.  E.  898,  and  other  authorities 
cited  in  last  note,  supra;  for  a  fur- 
ther  consideration   of   this   general 


175 


2910.] 


BURGLARY. 


176 


ute  making  a  change  in  the  elements  of  the  crime,  show  that  the  build- 
ing burglarized  was  a  dwelling-house,  or  at  least  that  it  was  within  the 
curtilage.^  But  whether  the  particular  building  in  question  was  with- 
in the  curtilage  has  been  held  to  be  a  question  of  fact  for  the  jury." 
So,  the  gist  of  the  offense  of  burglary  usually  being  the  breaking  and 
entering,''  that  element  must  also  be  established  beyond  a  reasonable 
doubt.^  And  the  burden  is  upon  the  prosecution  not  only  to  prove  the 
burglarious  entry,  but  also  to  show  that  such  entry  was  made  with  in- 
tent to  commit  a  felony  as  alleged.^    So,  if  the  statute  does  not  mal^e 


rule,  see.  Vol.  I,  §§  95.  126;  State 
V.  Brady,  (Iowa)  91  N.  W.  801,  805. 

^  Moore  v.  People  47  Mich.  639, 
11  N.  W.  415;  State  v.  Fisher,  1 
Pen.  (Del.)  303,  41  Atl.  208.  But 
it  has  been  held  that  actual  resi- 
dence therein  at  the  time  of  the  al- 
leged burglary  need  not  be  shown; 
Schwabacher  v.  People,  165  111.  618, 
46  N.  E.  809;  State  v.  Meerchouse, 
34  Mo.  344.  86  Am.  Dec.  109;  but 
compare  the  second  case  cited  in 
this  note.  In,  Holland  v.  State, 
(Tex.  Cr.  App.)  74  S.  W.  763,  evi- 
dence that  the  defendant  burglar- 
ized a  room  in  a  hotel  in  which  the 
prosecuting  witness  resided  was 
held  suflBcient  under  an  indictment 
charging  that  it  was  a  private  resi- 
dence. See  generally,  2  Am.  St.  388, 
et  seq. 

«Wait  v.  State,  99  Ala.  164,  13 
So.  584;  as  to  what  is  considered 
within  the  curtilage  generally,  see. 
State  V.  Bugg,  66  Kans.  668,  72  Pac. 
236;  Shotwell  v.  State,  43  Ark.  345; 
People  V.  Griffith,  (Mich.)  95  N.  W. 
719;  Fisher  v.  State,  43  Ala.  17; 
Rex  V.  Garland,  1  Leach  C.  C.  144; 
4  Blackstone  Comm.  225;  1  Hale 
P.  C.  558,  §  9;  8  Am.  &  Eng.  Ency. 
of  Law  (2d  ed.)  527;  ante.  Chap. 
132. 

'  State  V.  Hutchinson,  111  Mo.  257, 
20   S.  W.  34. 

"Lester  v.  State,  106  Ga.  371,  32 
S.  E.  335;  Lowder  v.  State,  63  Ala. 


143,  35  Am.  R.  9;  Washington  v. 
State,  21  Fla.  328;  White  v.  State, 
51  Ga.  285;  People  v.  McCord,  76 
Mich.  200,  42  N.  W.  1106;  State  v. 
Warford,  106  Mo.  55,  16  S.  W.  88G, 
27  Am.  St.  322;  McGrath  v.  State, 
25  Neb.  780,  41  N.  W.  780;  State  v. 
Cowell,  12  Nev.  337;  but  proof  cf 
very  slight  force  may  sustain  con- 
viction; May  V.  State,  40  Fla.  426, 
24  So.  498;  Sims  v.  State,  136  Ind. 
358,  36  N.  E.  278;  State  v.  Reid,  20 
Iowa  413;  State  v.  Herbert,  63  Kans. 
516,  66  Pac.  235;  State  v.  Warford, 
106  Mo.  55,  16  S.  W.  886,  27  Am.  St. 
322;  and,  as  will  hereafter  appear, 
it  is  sufficient  in  some  cases  to  show 
a  constructive  breaking. 

«  People  V.  Crowley,  100  Cal.  478, 
35  Pac.  84;  People  v.  Hope,  62  Cal. 
291;  State  v.  Carpenter,  Houst. 
Cr.  (DeL)  367;  State  v.  Fisher,  1 
Pen.  (Del.)  303,  41  Atl.  208;  Davis 
V.  State,  22  Fla.  633;  Schwabacher 
V.  People,  165  111.  618,  46  N.  E.  809; 
State  V.  Carroll,  13  Mont.  246,  33 
Pac.  688;  State  v.  Green,  15  Mont. 
424,  39  Pac.  322;  State  v.  Cowell,  12 
Nev.  337;  Coleman  v.  State,  26  Tex, 
App.  252,  9  S.  W.  609;  Walton  v. 
State,  29  Tex.  App.  163,  15  S.  W. 
646;  Mitchell  v.  State,  33  Tex.  Cr, 
App.  575,  28  S.  W.  475;  see  also, 
Starchman  v.  State,  62  Ark.  538,  36 
S.-  W.  940;  Rush  v.  State,  114  Ga. 
113.  39  S.  E.  941. 


177  QUESTIONS  OF  LAW  OR  FACT.     [§§  2911,  2912. 

a  breaking  and  entering  by  daylight  burglary,  it  must  also  be  shown 
beyond  a  reasonable  doubt  that  the  breaking  and  entering  were  done 
in  the  night-time.^"  As  will  be  shown  hereafter,  however,  circum- 
stantial as  well  as  direct  evidence  may  be  sufficient  to  establish  one  or 
more  of  these  various  elements  in  the  particular  case. 

§  2911.  Questions  of  law  or  fact. — The  question  as  to  whether  the 
essential  elements  exist  in  the  particular  case  is  usually  for  the  jury  to 
determine  from  the  evidence,  including  such  proper  inferences  as  may 
be  drawn  therefrom.  Thus,  it  is  for  the  jury  to  determine  whether  the 
act  was  done  in  the  night-time."  So,  the  identity  of  the  accused  and 
of  the  property,  the  intent,  and  the  like,  are  questions  of  fact  for  the 
jury.^^  But  the  court  should  instruct  as  to  what  are  the  necessary  ele- 
ments of  the  crime  and  as  to  what  is  meant  by  them  or  what  is  neces- 
sary in  law  to  constitute  the  crime.^^ 

§  2912.  Evidence  of  breaking  and  entering. — In  order  to  prove  a 
breaking  and  entering,  it  is  generally  necessary  to  show  that  the  house 
was  closed,^*  and  evidence  of  the  condition  of  the  premises  shortly  be- 
fore and  after  the  commission  of  the  alleged  ofEense  is  usually  compe- 
tent. Thus,  evidence  that  a  window  or  door  was  found  open  at  the 
time  and  that  it  had  been  left  closed  shortly  before  has  been  held  suffi- 

»» People  v.  Flynn.  73  Cal.  511,  15  E.    809;    Green   v.    State,    (Tex.    Cr. 

Pac.  102;  People  v.  Taggart,  43  Cal.  App.)  58  S.  W.  99. 
81;    Waters   v.    State,    53    Ga.    567;         "Rose  v.  Commonwealth,  19  Ky. 

State  V.  Frahm,  73  Iowa  355,  35  N.  L.  R.  272,  40  S.  W.  245. 
W.  451;  People  v.  Bielfus,  59  Mich.         "Kelly    v.     State,     82    Ga.    441; 

576,  26  N.  W.  771;  Ashford  v.  State,  Green  v.   State,   68  Ala.  539;    State 

36  Neb.  38,  53  N.  W.  1036;  see  also,  v.  Groning,  33  Kans.  18,  4  Pac.  446; 

Adams   v.    State,    31    Ohio    St.    462;  McGrath  v.  State,  25  Neb.  780,  41  N. 

Reg.  V.  Nicholas,  1  Cox  Cr.  Cas.  218.  W.    780;    Washington    v.    State,    21 

"State  V.  Leaden,  35  Conn.  515;  Fla.  328;  People  v.  McCord,  76  Mich. 

People  v.  Taylor,  93   Mich.   638,  53  200,  42  N.  W.  1106;   Jones  v.  State, 

N.  W.  777;  Davis  v.  State,  3  Coldw.  25  Tex.  App.  226.     Drawing  a  bolt, 

(Tenn.)  77;  see  also.  State  v.  Whit,  lifting  a  latch  or  opening  with  a  Ivey 

4  Jones  L.  (N.  Car.)  349.  has  been  held  sufficient  evidence  of 

'=  Commonwealth     v.     Chilson,     2  a  breaking.     Kent  v.  State,  84   Ga. 

Cush.   (Mass.)   15;   People  v.  Smith,  438,  11  S.  E.  355;   State  v.  O'Brien, 

92  Mich.  10,  52  N.  W.  67;    State  v.  81  Iowa  93,  46  N.  W.  861;    State  v. 

Williamson,  42  Conn.  261;   State  v.  Scripture,  42  N.  H.  485;  Hale  P.  C. 

Bell,   29   Iowa  316;    People  v.  Win-  553;    see   also,    Sims   v.    State,    136 

ters,  93  Cal.  277,  28  Pac.  946;  Schwa-  Ind.  358,  36  N.  E.  278. 
bacher  v.  People,  155  111.  618,  46  N. 
Vol.  4  Elliott  Ev. — 12 


2913.] 


BUEGLAEY, 


178 


cicnt  evidence  of  a  breaking.^^  It  has  also  been  held  competent  to 
show  that  shoes  or  clothing  belonging  to  the  accused  were  found  near 
by,  and  that,  from  appearances,  force  had  been  used  to  gain  an  en- 
trance.^** And  circumstantial  evidence  has  been  held  sufficient  in 
other  cases  to  show  both  a  breaking^^  and  an  entry.^^  The  entrance 
must  have  been  without  the  owner's  consent,  and  circumstantial  evi- 
dence has  been  held  insufficient  to  show  that  he  did  not  consent,  in  a 
few  cases  where  the  owner  was  present,  and  was  a  witness  and  did  not 
testify  upon  the  subject."  But,  ordinarily,  it  may  be  shown  by  cir- 
cumstantial evidence.^" 

§  2913.  Evidence  as  to  dwelling-house  and  ownership. — As  al- 
ready shown,  the  prosecution  must  prove  that  the  building  entered  was 
a  dwelling-house,  or  such  a  building  as  to  come  within  the  statute. 
Evidence  is  therefore  competent  as  to  the  character  and  ownership  of 
the  premises.^^  So,  unless  the  statute  is  such  as  to  make  a  variance 
as  to  the  ownership  of  the  premises  immaterial,  it  must  generally  l)e 
proved  as  charged."  But  the  ownership  or  value  of  property  stolen 
or  the  like  by  the  burglar  is  generally  immaterial,  and  need  not  be 
proved  precisely  as  alleged.-^ 


« People  v.  Curley,  99  Mich.  238, 
58  N.  W.  68;  State  v.  Warford,  106 
Mo.   55.  16   S.  W.   886. 

"Fort  V.  State,  52  Ark.  180,  11 
S.  W.  959;  England  v.  State,  89  Ala. 
76,  8  So.  146;  People  v.  Block,  60 
Hun   (N.  Y.)   583,  15  N.  Y.  S.  229. 

"Holland  v.  State,  112  Ga.  540, 
37  S.  E.  887;  Commonwealth  v.  Ha- 
gan,  170  Mass.  571,  49  N.  E.  922; 
State  V.  Christmas,  101  N.  Car.  749, 
8  S.  E.  361;  State  v.  Bee,  29  S.  Car. 
81,  6  S.  E.  911;  United  States  v. 
Lantry,  30  Fed.  232. 

"State  V.  Watkins,  11  Nev.  30; 
for  other  cases  in  which  the  evi- 
dence was  held  sufficient  to  show  a 
breaking  and  some  in  which  it  was 
held  insufficient,  see,  2  Am.  St.  383- 
387,  note. 

«  Ridge  V.  State,  (Tex.)  66  S.  W. 
774;  see  also.  Wisdom  v.  State, 
(Tex.)  61  S.  W.  926;  People  v.  Can- 
iff,  2  Park.  Cr.  Cas.   (N.  Y.)   586. 


^»  State  v.  Hayes,  105  Mo.  76,  18 
S.  W.  514;  Hurley  v.  State,  35  Tex. 
Cr.  App.  359,  33  S.  W.  354. 

==1  Houston  v.  State,  38  Ga.  165. 

=^  Jackson  v.  State,  102  Ala.  167, 
15  So.  344;  Berry  v.  State,  92  Ga. 
47,  17  S.  E.  1006;  Rodgers  v.  People, 
86  N.  Y.  360.  40  Am.  R.  548;  Doan 
v.  State,  26  Ind.  495;  State  v.  Mc- 
Carthy, 17  R.  I.  370,  22  Atl.  282; 
James  v.  State,  77  Miss.  370,  26  So. 
929,  78  Am.  St.  527;  State  v.  Hill, 
48  W.  Va.  132,  35  S.  E.  831. 

=^  State  V.  Tyrrell,  98  Mo.  354,  11 
S.  W.  734;  State  v.  Hutchinson,  111 
Mo.  257,  20  S.  W.  34;  Brown  v. 
State,  72  Miss.  990,  18  So.  431;  Mc- 
Crary  v.  State.  96  Ga.  348,  23  S.  B. 
409;  Reg.  v.  Clarke,  1  Car.  &  Kir. 
421,  47  E.  C.  L.  421;  admissions  of 
such  evidence  held  harmless;  Far- 
ley V.  State,  127  Ind.  419,  26  N.  E. 
898;  Pyland  v.  State,  33  Tex.  Cr. 
App.  382,  26  S.  W.  621. 


179 


EVIDENCE  AS  TO  TIME — PREPARATIONS. 


[§  2914. 


§  2914.  Evidence  as  to  time — Preparations. — As  already  stated, 
at  common  law,  and  except  where  the  rule  is  changed  by  statute,  it 
must  be  shown  that  the  breaking  and  entering  occurred  in  the  night- 
time.^* It  is  held,  however,  that  evidence  that  features  were  dis- 
cernible by  artificial  light,  or  by  moonlight,  will  not  avail  the  ac- 
cused.-•"■'  But  an  almanac  has  been  admitted,  although  rather  to 
refresh  the  memory  of  the  court  and  jury  than  as  evidence,  as  to  the 
time  the  sun  set  upon  the  day  in  question.-^  It  is  said  that  proof  of  a 
breaking  in  one  night  and  an  entrance  the  following  night  will  sus- 
tain a  conviction. ^^  If  the  evidence  leaves  the  exact  time  in  doubt, 
and  it  cannot  be  ascertained  whether  the  breaking  in  was  in  the 
night-time  or  not,  the  prisoner  should  have  the  benefit  of  the  doubt.-" 
But  the  time  may  be  shown  by  circumstantial  evidence. ^^  Evidence 
that  the  accused  had  made  preparations  to  commit  a  burglary  and  had 
endeavored  to  induce  the  custodian  of  the  premises  to  absent  himself, 
or  had  produced  burglar's  tools,^"  and  had  been  seen  lurking  about 
the  premises,^  ^  or  had  made  inquiries  as  to  property  which  was  in 
the  house,^^  or  as  to  the  character,  financial  circumstances  and  habits 
of  its  inmates,  has  been  held  admissible.^ ^ 


»*  Ashford  v.  State,  36  Neb.  38,  40, 
53  N.  W.  1036;  People  v.  Flynn,  73 
Cal.  511,  15  Pac.  102;  People  v. 
Griffin,  19  Cal.  578;  State  v.  Sey- 
mour, 36  Me.  225,  227;  State  v. 
Leaden,  35  Conn.  515;  Guynes  v. 
State,  25  Tex.  App.  584,  8  S.  W.  667; 
Waters  v.  State,  53  Ga.  567;  Allen 
V.  State,  40  Ala.  334 ;  Commonwealth 
V.  Glover,  111  Mass.  395,  402;  Peo- 
ple V.  Blelfus,  59  Mich.  576,  26  N. 
W.  771;  as  to  what  is  considered 
night-time  under  this  rule,  see,  4 
Blackstone  Comm.  224;  3  Coke  Inst. 
63;  State  v.  Bancroft,  10  N.  H.  105. 
The  statute  sometimes  defines  it. 
Reg.  v.  Polly,  1  Car.  &  Kir.  77,  47  E. 
C.  L.  77;  Commonwealth  v.  Wil- 
liams, 2  Cush.  (Mass.)   582. 

^  State  V.  Morris,  47  Conn.  179; 
State  V.  McKnight,  111  N.  Car.  690, 
692,  16  S.  E.  319;  Commonwealth  v. 
Kaas,  3  Brewst.  (Pa.)  422;  State  v. 
Bancroft,  10  N.  H.  105,  107;  2  East 
P.  C.  509;   1  Hale  P.  C.  550. 


*"  State  V.  Morris,  47  Conn.  179. 

"  Rex  V.  Smith,  Russ.  &  Ry.  417 ; 
see  also.  Commonwealth  v.  Glover, 
111  Mass.  395. 

=*  Waters  v.  State,  53  Ga.  567. 

=»Houser  v.  State,  58  Ga.  78;  State 
V.  Bancroft,  10  N.  H.  105;  State  v. 
Taylor,  37  La.  Ann.  40. 

'"People  V.  Calvert,  67  Hun  (N. 
Y.)   649,  22  N.  Y.  S.  220. 

"  State  V.  Turner,  106  Mo.  272,  17 
S.  W.  304. 

3=  Gilmore  v.  State,  99  Ala.  154,  13 
So.  536. 

'^lUnderhill  Cr.  Ev.,  §  371;  State 
V.  Ward,  103  N.  Car.  419,  423,  8  S. 
E.  814.  But  it  has  been  held  that 
proof  that  the  value  of  the  property 
in  the  house  was  small  does  not  ad- 
mit evidence  that  the  accused  is  a 
man  of  large  means  and  in  good  cir- 
cumstances. Coates  V.  State,  31 
Tex.  Cr.  App.  257,  261,  20  S.  W. 
585. 


§§  2915,  2916.]  BURGLARY.  180 

§  2915.  Evidence  as  to  intent. — Where  a  felony  is  actually  com- 
mitted by  the  defendant  in  the  house  broken  into  and  entered  by  him 
there  could  not  well  be  better  evidence  of  his  felonious  intent  than  the 
proof  of  the  commission  of  such  felony.^*  But  it  may  also  be  shown  by 
other  facts  and  circumstances,  or  by  some  act  or  declaration  of  the 
defendant.^^  Thus,  where  the  accused,  having  broken  and  entered 
the  house,  is  discovered  collecting  articles  of  value  or  ransacking  a 
trunkj^"^  or  where  he  immediately  fled  from  the  house,  on  being  sur- 
prised, or  clothing  was  found  placed  in  a  bundle  outside  the  house," 
or  the  like,2«  evidence  thereof  is  admissible  and  may  well  justify  an 
inference  of  felonious  intent.  But  the  inference  thus  arising  may  be 
rebutted,  and  proper  evidence  is  admissible  in  behalf  of  the  accused 
to  explain  his  actions  and  rebut  the  criminating  circumstances.^* 

§  2916.  Identification — ^Burglarious  tools. — Direct  evidence  is,  of 
course,  admissible,  in  a  proper  case,  to  identify  the  prisoner,  and,  as 
elsewhere  shown,  ordinary  witnesses  may  testify  as  to  the  identity  of 
persons  or  things  even  though  such  testimony  partakes  of  the  nature 
of  a  conclusion  or  an  opinion.*^  So,  real  evidence  and  an  inspection 
or  physical  examination  may  be  permitted,  in  some  jurisdictions  nt 
least,  for  the  purpose  of  identification."     And  the  identity  of  the 

'*  Jones    V.    State,    18    Fla.    889;  So.  863;  State  v.  Anderson,  5  Wash. 

Stokes  V.   State,   84   Ga.    258,   10   S.  350,  31  Pac.  969. 

E.    740;    Speers    v.    Commonwealth,  ^People  v.  Curley,  99  Mich.  238, 

17   Gratt.    (Va.)    570;    2   East  P.   C.  58  N.  W.  68. 

520    note.  =•«  State    v.    McBryde,    97    N.    Car. 

^^'steadman  v.  State,  81  Ga.  736,  393,  1  S.  E.  925;   Hill  v.  Common- 

8   S.   E.  420;    McComb  v.   Common-  wealth,  12  Ky.  L.  R.  914,  15  S.  W. 

wealth,  11  Ky.  L.  R.  508,  12  S.  W.  870;  see  also,  Alexander  v.  State,  31 

382;    State    v.    Worthen,    111    Iowa  Tex.   Cr.   App.    359,    20    S.   W.    756; 

267,  82  N.  W.  910;  State  v.  Maxwell,  Steadman  v.  State,  81  Ga.  736,  8  S. 

42  'lowa   208;    People    v.    Marks,    4  E.  420;  2  Am.  St.  396,  397,  note;  but 

Park.  Cr.  Cas.    (N.  Y.)    153;    Alex-  see,  Hamilton  v.  State,  11  Tex.  App. 

ander  v.  State.  31  Tex.  Cr.  App.  359,  116;  Rush  v.  State,  114  Ga.  113,  39 

20    S.    W.    756;    Commonwealth    v.  S.  E.  941. 

Shedd,  140  Mass.  451,  5  N.  E.  254;  ^^  People  v.  Griffin,  77  Mich.  585, 

Feister   v.    People,   125    111.    348,    17  43  N.  W.  1061;    State  v.  Meche,  42 

N.  E.  748;  Burrows  v.  State,  84  Ind.  La.   Ann.   273,   7    So.   573;    State   v. 

529;   People  v.  Morton,  4  Utah  407.  Fox,  80  Iowa  312,  45  N.  W.  874,  20 

11  Pac.  512;  State  v.  Caddie,  35  W.  Am.  St.  425. 

Va   73,  12  S.  E.  1098.  '"Vol.  I,  §  680. 

» Clifton  V.  State,  26  Fla.   523,  7  "See,  Vol.  II,  §§  1014.  1221,  1223, 

1231.   1232. 


181  IDENTIFICATION OTHER   OFFENSES.  [§    2917. 

prisoner  as  the  person  who  committed  the  burglary,  may  be  shown  by 
circumstantial  evidence"  as  well  as  by  direct  evidence.  Even  a  closely 
connected  collateral  crime  or  offense  may  be  shown  in  a  proper  case 
for  this  purpose.*^  And,  as  will  hereafter  be  shown,  possession  of 
stolen  goods  or  the  fruits  of  the  crime  may  likewise  be  shown  in  a 
proper  case  upon  this  question  as  well  as  for  other  purposes.^*  The 
possession  of  burglarious  tools  and  instruments  with  which  the  crime 
was  committed  is  also  relevant,  and  may  be  shown,  especially  with  other 
evidence  tending  to  connect  the  accused  with  the  offense.'*^  So,  evi- 
dence of  footprints  found  near  the  place  of  the  crime  shortly  after  the 
burglary  similar  to  those  made  by  him,**^  or  of  an  article  of  clothing 
or  the  like  found  at  the  scene  of  the  crime  and  shown  to  have  belonged 
to  him,  is  usually  competent  and  admissible  as  tending  to  show  his 
presence  there  at  the  time  of  the  commission  of  the  crime.*^ 

§  2917.  Other  offenses. — In  prosecutions  for  burglary  as  in  other 
cases,  the  general  rule  is  that  the  prosecution  cannot  prove  the  com- 
mission by  the  defendant  or  others  of  other  burglaries,  or  offenses,  not 
in  any  way  connected  with  the  particular  crime  charged  in  the  indict- 
ment.*^   But  evidence  of  another  burglary  than  that  charged,  or  of  any 

*=  State    V.    Manluff,     Houst.     Cr.  « Gilmore   v.    State.   99   Ala.    154. 

(Del.)     208;    Maroney    v.    State,    8  13  So.  536;  see  also,  Cooper  v.  State, 

Minn.    218;     Johnson    v.    Common-  88  Ala.  107,  7  So.  47;  Miller  v.  State, 

wealth,  29  Gratt.   (Va.)  796;  Vol.  I,  91  Ga.  186,  16  S.  E.  985;   People  v. 

§  174;  see  also,  State  v.  Robertson,  Wolcott,  51  Mich.  612,  17  N.  W.  78: 

111  La.  Ann.  35,  35  So.  375.  Commonwealth   v.    Pope,    103    Mass. 

''Vol.  I,  §  174,  note  201*;  see  also,  440;   State  v    Reitz,  83  N.  Car.  634. 

Perry  v.  State,    (Tex.  Cr.  App.)   78  And  on  the  other  hand  the  accused 

S.  W.  513.  may   show  that  he  could  not  have 

"Walker  v.  State,  97  Ala.  85,  12  made  the  tracks.     State  v.  Melick, 

So.  83;    State  v.  Groning,  33  Kans.  65  Iowa  614.  22  N.  W.  895. 

18,  5  Pac.  446;  Jackson  v.  State,  28  *"  People    v.    Rowell,    133    Cal.    39. 

Tex.  App.  370,  13  S.  W.  451;  Wood-  65    Pac.    127;    see    also.    People    v. 

rufE  v.  State,  '(Tex.)    20  S.  W.  573;  Flynn,  73  Cal.  511,  15  Pac.  102,  with 

State  v.  Hullen,  133  N.  Car.  656,  45  which  however,  compare.  People  v. 

S.  E.  513.  Cronk,    40    App.    Div.    (N.   Y.)    206, 

« White  v.  People,  179  111.  356,  53  58  N.  Y.  S.  13. 

N.   E.   570;    Commonwealth   v.  Wil-  **Vol.  I,  §  175;  People  v.  McNutt. 

liams,  56  Mass.  582;  State  v.  Franks,  64  Cal.   116.   28  Pac.  64;    Roberson 

64  Iowa  39,  19  N.  W.  832;  People  v.  v.    State,    40   Fla.   509,   24    So.   474; 

Hope,  62  Cal.  291;   State  v.  Haynes,  State  v.  Johnson,  38  La.  Ann.  686: 

7  N.  Dak.  70.  72  N.  W.  923;  see  also,  People  v.  Henry,  129  Mich  100,   8S 

People  v.  Larned,  7  N.  Y.  445;  Bruen  N.  W.  77;  State  v.  Hale.  156  Mo.  102. 

V.  People.  206  111.  417,  69  N.  E.  24.  56    S.    W.    881;    Swan    v.    Common- 


§    2918.]  BURGLARY.  183 

other  offense,  is  admissible,  if  both  offenses  are  in  reality  parts  of  tlie 
same  transaction  or  otherwise  connected  within  the  exception  elsewhere 
stated,  or  if  it  shows  the  whereabouts  of  the  defendant  at  the  time  al- 
leged in  the  indictment,  or  otherwise  tends  to  show  a  regular  organized 
system  or  to  connect  him  with  the  offense  charged,  so  as  to  fall  within 
such  exception. *°  Evidence  of  other  burglaries  and  larcenies  by  the 
defendant  at  the  same  place,  or  in  a  different  house,  at  about  the  same 
time,  may  also  be  admissible  on  the  question  of  intent.^"  But  the  de- 
fendant cannot  ordinarily  show  that  other  burglaries  were  committed 
at  about  the  same  time  as  that  with  which  he  is  charged,^^  although 
there  are  instances  in  which  he  may  show  that  some  one  else,  and  not 
he,  committed  the  crime  in  question. 

§  2918.  Possession  of  stolen  property. — ^The  effect  of  evidence  of 
recent  possession  of  stolen  property  has  already  been  considered,  and 
while  it  is  universally  conceded  that  such  evidence  is  admissible  in  a 
proper  case,  much  tlie  same  conflict  among  the  authorities  exists  in 
regard  to  whether  such  evidence  of  itself  raises  any  true  presumption 
of  guilt  in  cases  of  burglary  as  in  other  cases,  although  the  conflict 
is  not,  perhaps,  so  great  as  in  cases  of  larceny.  The  better  and  pre- 
vailing rule  seems  to  be  that  stated  in  a  recent  case'^^  substantially  as 

wealth,  104  Pa.  St.  218;  Hunt  r.  14  S.  E.  766rGass'v7  State  (Tex. 
State,  (Tex.  Cr.  App.)  60  S.  W.  965;  Cr.  App.)  56  S.  W.  73;  State  v. 
see  also,  People  v.  Greenwall,  108  Noris,  27  Wash.  453,  67  Pac.  983; 
N.  Y.  296,  15  N.  E.  404;  McAnally  Reg.  v.  Cobden,  3  F.  &  F.  833. 
V.  State  (Tex.  Cr.  App.)  73  S.  W.  "State  v.  Franke,  159  Mo.  535,  60 
404.  S.  W.  1053;  Osborne  v.  People,  2 
'"See,  Vol.  I,  §  175;  Vol.  IV,  Park.  Cr.  Cas.  (N.  Y.)  583;  Com- 
§  2916;  also,  Ray  v.  State,  126  Ala.  monwealth  v.  Shepherd,  2  Pa.  Dist. 
9,  28  So.  634;  Mason  v.  State,  42  345;  State  v.  Weldon,  39  S.  Car. 
Ala.  532;  People  v.  McGilver,  67  318,  17  S.  E.  688,  24  L.  R.  A.  126; 
Cal.  55,  7  Pac.  49;  Roberson  v.  State,  State  v.  Valwell,  66  Vt.  558,  29  Atl. 
40  Fla.  509,  24  So.  474;  Frazier  v.  118;  but  see,  People  v.  McNutt,  64 
State,  135  Ind.  38,  34  N.  E.  817;  Cal.  116,  28  Pac.  64;  State  v.  John- 
State  V.  Wrand,  108  Iowa  73,  78  N.  son,  38  La.  Ann.  686;  People  v. 
W.  788;  People  v.  Mead,  50  Mich.  Henry,  129  Mich.  100,  S8  N  W.  77; 
228,  15  N.  W.  95;  People  v.  Gibson,  McAnally  v.  State,  (Tex.  Cr.  App.) 
58  Mich.  368,  25  N.  W.  316;    State  73  S.  W.  404. 

V.   Adams,   20   Kans.    311;    State   v.  "State  v.  Smarr,  121  N.  Car.  669, 

Fitzsimon,  18  R.  I.  236,  27  Atl.  446,  28  S.  E.  549;  Roberson  v.  State,  40 

49  Am.  St.   766;    Commonwealth  v.  Fla.  509.  24  So.  474. 

Scott,  123  Mass.  239,  25  Am.  R.  81;  ^=  State   v.    Brady,    (Iowa)    91    N. 

State  V.  Robinson,   35   S.   Car.   340,  W.   801,  803,  805. 


183        POSSESSION  OF  STOLEN  PROrERTY — DEFENSES.    [§  2919. 

follows :  There  is  no  legal  presumption  of  guilt  of  burglary  attacliing  to 
the  mere  possession  of  the  stolen  goods  by  the  accused ;  but  such  fact, 
if  the  alleged  fact  be  of  recent  occurrence,  has  a  tendency  to  prove  his 
guilt,  and,  if  there  be  other  proved  circumstances  tending  to  connect 
him  with  the  commission  of  the  offense,  the  fact  of  possession,  thus 
aided,  will  sustain  a  conviction ;"  or,  in  other  words,  where,  independ- 
ent of  the  mere  possession  by  the  accused  of  the  recently  stolen  goods, 
the  evidence  tends  to  show  that  a  burglary  was  committed  by  some  one, 
and  that  the  theft  of  the  goods  was  accomplished  at  the  same  time,  and 
by  means  of  such  burglary,  the  proof  of  possession  of  the  fruits  of  the 
crime  will  be  sufficient  to  sustain  a  conviction  of  the  felonious  break- 
ing and  entering,^*  but  of  itself  the  mere  fact  of  possession  of  stolen 
goods  does  not  create  a  presumption  that  the  possessor  was  guilty  of 
burglary. 

§  2919.  Defenses. — The  same  defenses  are  open  to  the  accused  in 
cases  of  burglary  as  in  most  prosecutions.  Thus,  he  may  establisli  or  in- 
troduce evidence  to  prove  an  alibi,  or,  in  general,  he  may  introduce  any 
competent  evidence  tending  to  show  that  he  did  not  commit  the  crime 
with  which  he  is  charged. ^^  He  may  show  that  he  was  so  drunk  at 
the  time  of  its  commission  that  he  could  not  have  committed  it."°  And 

==>  Citing,  State  v.  Powell,  61  Kans.  People   v.    Wood,    99    Mich.    620,    58 

81,  58  Pac.  968;    Methard  v.   State,  N.  W.  638;   see  also,  King  v.  State, 

19   Ohio  St.  363;    People  v.  Fagan,  99  Ga.  686,  26  S.  E.  480;  Porterfield 

66  Cal.   534,   6   Pac.   394;    People  v.  v.    Commonwealth,    91    Va.    801.    22 

Hannon,   85  Cal.   374,  24   Pac.  706;  S.  E.  352;  State  v.  Blue,  136  Mo.  41. 

Metz  V.  State,  46  Neb.  547,  65  N.  W.  37  S.  W.  796;  State  v.  Raymond.  46 

190;    Davis  v.   People,   1   Park.   Cr.  Conn.  345;   Smith  v.  State,  58  Ind. 

Cas.   (N.  Y.)   447;   State  v.  Conway,  340;   Cavender  v.  State.  126  Ind.  47, 

56  Kans.  682,  44  Pac.  627;   Ryan  v.  25  N.  E.  875.     The  inference  is  one 

State,  83   Wis.   486,   53  N.  W.   836;  of  fact  to  be  drawn  from  all  the  evi- 

State    V.    Graves,    72    N.    Car.    482;  dence   rather  than   a   so-called   pre- 

State  V.  Hodge,  50  N.  H.  510;  Talia-  sumption  of  law.    See  also  and  com- 

ferro  V.  Commonwealth.  77  Va.  411;  pare,   State   v.    Williams,   120    Iowa 

Falvey  v.   State,   85   Ga.   157,   11   S.  36,  94  N.  W.  255,  v/ith  State  v.  Swift, 

E.  607;    Stuart  v.  People,  42   Mich.  120  Iowa  8,  94  N.  W.  269. 

255,  3  N.  W.  863;   Brooks  v.  State,  =^  See     generally,      Grantham     v. 

96  Ga.  353,  23  S.  E.  413;  1  McClain  State,    95    Ga.    459,    22    S.    E.    281; 

Cr.    Law,    §    514.  Price  v.  People,  109  111.  109;  Robin- 

■^  Smith  V.   People,   115   111.   17,   3  son  v.  State,  53  Md.  151,  36  Am.  R. 

N.  E.  733;   Langford  v.  People,  134  399. 

111.    444,   25   N.   E.    1009;    Magee   v.  '» Ingalls    v.    State,    48    Wis.    647. 

People,  139  111.  138,  28  N.  E.  1077;  4  N.  W.  785;  see  also,  Schwabacher 


2919.] 


BURGLARY, 


184 


he  may  generally  introduce  evidence  to  show  by  circumstances,  or  even 
testify  himself,  that  his  intent  was  different  from  that  charged."  So, 
where  he  has  possession  of  stolen  property  or  the  like,  or  other  circum- 
stances indicating  or  leading  to  the  inference  of  his  guilt  have  been 
shown  by  the  prosecution,  he  may  introduce  competent  evidence  to  ex- 
plain his  possession  or  otherwise  rebut  the  evidence  of  the  prosecu- 
tion.^® 


V.  People,  165  111.  618,  46  N.  E.  809; 
State  V.  Bell,  29  Iowa  316;  but  com- 
pare, State  V.  Shores,  31  W.  Va. 
491,  7  S.  E.  413,  13  Am.  St.  875. 

«'  State  V.  Meche,  42  La.  Ann.  273, 
7  So.  573;  People  v.  Griffin,  77  Mich. 
585,  43  N.  W.  1061. 

^'  See,  Henderson  v.  State,  70  Ala. 
23,  45  Am.  R.  72;  Leslie  v.  State,  35 


Fla.  171,  17  So.  555;  Roberson  v. 
State,  40  Fla.  509,  24  So.  474;  Hays 
v.  State,  30  Tex.  App.  472,  17  S.  W. 
1063;  State  v.  Owsley,  111  Mo.  450, 
20  S.  W.  194;  as  to  good  character 
and  financial  circumstances,  see, 
Cavender  v.  State,  126  Ind.  47,  25 
N.  E.  875. 


CHAPTER  CXXXIX. 


CONSPIRACY. 


Sec. 

2920.  Generally — Distinction  be- 

tween    civil     and     criminal 
conspiracy. 

2921.  Definition. 

2922.  Statutory  conspiracy. 

2923.  Conspiracy  not  an  attempt  to 

commit  crime. 

2924.  Pleading  conspiracy. 

2925.  Pleading — Stating  means  em- 

ployed. 

2926.  Pleading    overt    act — Surplus- 

age. 

2927.  Criminal  conspiracy. 

2928.  Criminal  conspiracy — M  a  r  y  - 

land  rule. 

2929.  "Unlawful" — Meaning. 

2930.  "Unlawful" — Wisconsin       and 

New  Hampshire  rule. 

2931.  Public  injuries. 

2932.  Public    injuries — New    Hamp- 

shire rule. 

2933.  Private  injuries. 

2934.  Order  of  proof. 

2935.  Two  or  more  engaged. 

2936.  Proof  of  conspiracy. 

2937.  Proof      of      conspiracy — SufB- 

ciency. 


Sec. 

2938.  Proof  of  formal  agreement  not 

necessary. 

2939.  Declarations  of  co-conspirator 

— Admissibility  as  evidence. 

2940.  Declarations  of  co-conspirator 

Preliminary  proof. 

2941.  Declarations  of  co-conspirator 

— Prima  facie  case. 

2942.  Prima  facie  case — Sufficiency. 

2943.  Declarations  of  co-con::pirators 

— Limitations  to  rule. 

2944.  Declarations   made   after   con- 

spiracy    terminated — R  u  1  e 
and  exceptions. 

2945.  Proof     when     co-conspirators 

are  not  named. 

2946.  Overt   acts — Proof   of   not    re- 

quired. 

2947.  Overt  acts — When  proof  neces- 

sary. 

2948.  Overt     acts     and     conspiracy 

merged. 

2949.  Labor     combinations — W  hen 

criminal. 

2950.  Labor  combinations — Vermont 

rule. 

2951.  Labor    combinations — Strikes, 

boycott  and  picketing. 


§  2920.  Generally — Distinction  between  civil  and  criminal  con- 
spiracy.— The  scope  of  this  chapter  is  to  treat  distinctively  the  rules 
of  proof  in  criminal  conspiracy,  avoiding,  except  incidentally,  any 
treatment  of  such  rules  as  apply  in  civil  actions  for  damages  occa- 
sioned by  wrongful  or  unlawful  conspiracies.  However,  it  may  be 
proper  in  a  general  and  preliminary  way  to  note  the  distinction  be- 
tween civil  and  criminal  conspiracies.  By  civil  conspiracy  is  meant 
such  a  conspiracy  as  will  furnish  a  basis  for  a  civil  action  for  dam- 

185 


3931.] 


COXSPIEACY. 


ISG 


ages.  A  criminal  conspiracy  may  be  complete  without  in  any  way  af- 
fecting or  damaging  any  particular  person.  But  to  afford  the  basis 
of  a  civil  action  for  damages  tlie  proof  must  show  that  the  alleged 
conspiracy  was  carried  out  and  operated  to  the  injury  of  the  party 
complaining.  A  criminal  conspiracy  when  fully  executed  may  also 
fall  within  the  term  civil  conspiracy.  And  it  is  barely  possible  that 
every  civil  conspiracy  has  within  it  some  of  the  characteristics,  if  not 
the  essential  ingredients,  of  a  criminal  conspiracy.  The  dicta  of  the 
cases  are  to  the  effect  that  the  gist  of  the  criminal  conspiracy  is  the 
unlawful  combination,  and  the  gist  of  the  civil  conspiracy  is  the 
injury  or  damage  actually  done.^ 

§  2921.  Definition. — Courts  and  law  writers  recognize  the  diffi- 
culty in  defining  criminal  conspiracy.  But  general  definitions  are 
given  which  may  aid  in  determining  the  nature  and  character  of  the  of- 
fense, if  not  regarded  as  exact  in  each  particular  case.  The  most  com- 
prehensive statement  and  the  most  generally  accepted  definition  is  that 
it  is  the  combination  or  conspiracy  of  two  or  more  persons  for  the  ac- 


^  Brown  v.  Jacobs  &c.  Co.,  115  Ga. 
429,  41  S.  E.  553;  Herron  v.  Hughes, 
25  Cal.  560;  Dowdell  v.  Carpy,  129 
Cal.  168,  61  Pac.  948;  State  v.  Row- 
ley, 12  Conn.  101;   State  v.  Glidden, 

55  Conn.  46,  8  Atl.  890;  Anderson  v. 
Jett,  (Ky.)  6  L.  R.  A.  390;  Texas  &c. 
Co.  V.  Adoue,  83  Tex.  650,  19  S.  W. 
274;  Park  &c.  Co.  v.  National  &c. 
Asso.,  30  App.  Div.  (N.  Y.)  508,  52 
IM.  Y.  S.  475;  People  v.  Chicago  &c. 
Gas  Co.,  130  111.  268,  22  N.  E.  798, 
8  L.  R.  A.  497;   McHenry  v.  Sneer, 

56  Iowa  649,  10  N.  W.  234;  Kimball 
V.  Harman,  34  Md.  407;  Garing  v. 
Fraser,  76  Me.  37;  Commonwealth 
V.  Waterman,  122  Mass.  43;  Vege- 
lahn  V.  Guntner,  167  Mass.  92,  44 
N.  E.  1077;  Plant  v.  Woods,  176 
Mass.  492,  57  N.  E.  1011;  Bush  v. 
Sprague,  51  Mich.  41,  16  N.  W.  222; 
State  V.  Donaldson,  32  N.  J.  L.  151; 
Hutchins  v.  Hutchins,  7  Hill  (N. 
Y.)  104;  Adler  v.  Fenton,  24  How. 
(U.  S.)  407;  People  v.  Sheldon,  139 
N.  Y.   251,   34   N.   E.   785;    State   v. 


Younger,  1  Dev.  L.  (N.  Car.)  357; 
Laverty  v.  Vanarsdale,  65  Pa.  St. 
507;  Morris  Run  &c.  Co.  v.  Barclay 
&c.  Co.,  68  Pa.  St.  173,  187;  State  v. 
Stewart,  59  Vt.  273.  9  Atl.  559: 
Boutwell  v.  Marr,  71  Vt.  1,  42  Atl. 
607;  Smith  v.  Nippert,  76  Wis.  86, 
44  N.  W.  846;  Martens  v.  Reilly,  109 
Wis.  464,  84  N.  W.  840;  United 
States  v.  Weber,  114  Fed.  950; 
United  States  v.  Addyston  &c.  Co., 
29  C.  C.  A.  141.  85  Fed.  271;  United 
States  V.  Trans-Missouri  &c.  Asso., 
166  U.  S.  290,  17  Sup.  Ct.  540;  United 
States  v.  Cassidy,  67  Fed.  698;  East 
Nissouri  v.  Horseman,  16  U.  C.  Q. 
B.  556;  Mogul  &c.  Co.  v.  McGregor, 
L.  R.  21  Q.  B.  544;  Huttley  v.  Sim- 
mons, 1  Q.  B.  (1898)  181;  Rex  v. 
Journeymen  Taylors,  8  Mod.  11; 
Savile  v.  Roberts,  1  Ld.  Raym.  374, 
378;  see,  1  Eddy  Combinations, 
§§  171,  340;  for  a  collection  of  au- 
thorities on  the  question  of  civil 
conspiracy,  see,  8  L.  R.  A.  497,  note; 
57  L.  R.  A.  547.  note. 


187  DEFIXITIOXS.  [§   2921. 

complishment  of  an  unlawful  purpose ;  or  such  a  combination  or  con- 
spiracy of  two  or  more  persons  to  effect  a  lawful  purpose  by  unlawful 
methods  or  means.-  j\Ir.  Bishop  defines  it  as  follows:  "Conspiracy  is 
the  corrupt  agreeing  together  of  two  or  more  persons  to  do  by  concert- 
ed action  something  unlawful,  eitlier  as  a  means  or  as  an  end.  The 
unlawful  thing  must  be  such  as  would  be  indictal)ly  performed  by  one 
alone,  or,  not  being  such,  be  of  the  nature  particularly  adapted  to  in- 
jure the  public  or  some  individual  by  reason  of  the  combination."^  The 
Supreme  Court  of  ]\rassachusetts  in  an  early  case  recognized  the  diffi- 
culty of  accurately  defining  this  crime,  and  say :  "But  the  great  diffi- 
culty is  in  framing  any  definition  or  description,  to  be  drawn  from  the 
decided  cases,  wliich  shall  specifically  identify  this  offense — a  descrip- 
tion broad  enough  to  include  all  cases  punishable  under  this  descrip- 
tion, without  including  acts  which  are  not  punishable.  Without  at- 
tempting to  review  and  reconcile  all  the  cases,  we  are  of  opinion  that, 
as  a  general  description,  though  perhaps  not  a  precise  and  accurate 
definition,  a  conspiracy  must  be  a  combination  of  two  or  more  persons 
by  some  concerted  action,  to  accomplish  some  criminal  or  unlawful 
purpose,  or  to  accomplish  some  purpose,  not  in  itself  criminal  or  un- 
lawful, by  criminal  or  unlawful  means.  We  use  the  terms  criminal 
or  unlawful,  because  it  is  manifest  that  many  acts  are  unlawful  which 
are  not  punishable  by  indictment  or  other  public  prosecution ;  and  yet 
there  is  no  doubt,  we  think,  that  a  combination  by  numbers  to  do  thera 
would  be  an  unlawful  conspiracy,  and  punishable  by  indictment."* 
As  defined  by  an  inferior  court  of  Ohio,  "a  conspiracy  is  a  combina- 
tion of  two  or  more  persons  by  some  concert  of  action  to  accomplish 

'Clinton   v.    Estes,    20    Ark.    216;  Atl.  559;    Boutwell  v.  Marr,  71  Vt. 

Smith  V.  People,  25  111.  9;    Spies  v.  1,  42  Atl.  607;   People  v.  Flack,  125 

People,  122  111.  1,  12  N.  E.  865,  17  N.   Y.   324,   26   N.   E.   267;    State  v. 

N.    E.    898;    Orr   v.    People,    63    111.  Crowley,    41   Wis.    271;    Martens   v. 

App.  305;  Sparks  v.  Commonwealth,  Reilly,  109  Wis.  464,  84  N.  W.  840; 

89  Ky.  644,  20  S.  W.  167;    State  v.  Pettibone  v.   United   States,   148   U. 

Slutz,  106  La.  Ann.  182,  30  So.  298;  S.  197.  13  Sup.  Ct.  542;  United  States 

State  V.  Mayberry,  48  Me.  218;  Ell-  v.    Lancaster,    44   Fed.    896;    United 

zey  V.  State,  57  Miss.  826;  Common-  States    v.    Johnson,    26    Fed.    682; 

wealth  V.  Hunt,  4  Mete.  (Mass.)  Ill;  United    States   v.    Cassidy,    67    Fed. 

Hart  V.  Hicks,  129  Mo.  99,  31  S.  W.  698;   Drake  v.  Stewart,  22  C.  C.  A. 

351;    State  v.   Davies,   80   Mo.  App.  104,  76  Fed.  140;   Wright  v.  United 

239;  State  v.  Kennedy,  177  Mo.  98,  75  States,  48  C.  C.  A.  37,  108  Fed.  805; 

S.  W.  979;  State  v.  Donaldeon,  32  N.  Reg.  v.  Parnell,  14  Cox  Cr.  Cas.  508. 

J.  L.  151;   State  v.  Burnham,  15  N.  '2  Bishop  Cr.  Law,  §  172. 

H.    396;    State   v.    Straw,    42    N.   H.  *  Commonwealth  v.  Hunt,  4  Mete. 

393;   State  v.   Stewart,   59   Vt.   1,  9  (Mass.)   111. 


§§  2922,  2923.]  conspiracy.  188 

some  criminal  or  unlawful  purpose,  or  some  purpose  not  in  itself  crimi- 
nal or  unlawful  by  criminal  or  unlawful  means. "^ 

§  2922.  Statutory  conspiracy. — The  United  States  and  some  of 
the  states  have  statutes  prescribing  penalties  against  conspiracy.  But 
these  statutes  do  not  profess  to  enumerate  the  acts  necessary  to  con- 
stitute the  offense;  the  prohibition  under  the  statute  of  the  United 
States  extends  to  two  or  more  persons  who  conspire  either  to  com- 
mit any  offense  against  the  United  States  or  to  defraud  the  United 
States  in  any  manner  or  for  any  purpose.  Some  of  these  statutes 
further  provide  that  if  one  or  more  of  the  parties  to  the  con- 
spiracy do  any  act  in  carrying  out  the  conspiracy  then  all  the 
parties  to  such  conspiracy  shall  be  liable.  Under  such  a  statute  it  has 
been  held  necessary  to  prove  three  elements  in  order  to  establish  the 
offense:  (1)  The  act  of  two  or  more  persons  conspiring  together;  (2) 
to  commit  any  offense  against  the  United  States;  (3)  the  overt  act 
or  the  doing  of  any  act  to  effect  the  object  of  the  conspiracy.^  Under 
such  statutes  it  has  been  held  that  it  was  not  essential  to  state  the 
name  of  the  other  persons  with,  whom  the  defendant  conspired,  and  it 
was  not  necessary  to  allege  the  acts  done.^  The  decided  cases  holding 
the  proof  sufficient  to  establish  a  conspiracy  under  the  statute  are  bet- 
ter precedents  than  abstract  rules.* 

§  2923.  Conspiracy  not  an  attempt  to  commit  crime. — A  distinc- 
tion exists  between  a  conspiracy  and  an  attempt  to  commit  a  crime.  It 
may  be  admitted,  however,  that  conspiracy  in  some  of  its  essential  fea- 
tures is  very  closely  akin  to  an  attempt  to  commit  a  crime.  And  it  is 
equally  true  that  in  some  instances  the  proof  that  would  support  a 
charge  of  an  attempt  would  also  be  sufficient  to  prove  a  conspiracy.  In 
discussing  the  resemblance  which  a  conspiracy  bears  to  an  attempt  to 
commit  crime  the  Supreme  Court  of  Connecticut  say :  "It  differs  from 
the  common-law  attempt,  in  that  it  is  not  merged  in  the  crime  intend- 
ed ;  if  that  crime  is  actually  committed,  as  well  as  in  other  respects.  But 
in  many  cases  the  separating  line  between  the  offense  of  a  conspiracy 

=  State  V.  Snell,  2  Ohio  N.  P.  55;  States  v.  Dunbar.  27  C.  C.  A.  488,  83 

Owens  V.  State,  84  Tenn.  1;  Girdner  Fed.  151;   United  States  v.  Stevens, 

v.   Walker,    1    Heisk.    (Tenn.)    186;  27  Fed.  Gas.  No.  16392. 

3  Greenleaf  Ev..  §  89.  '  United   States  v.   Dunbar,  27  C. 

"  United  States  v.  Barrett,  65  Fed.  G.  A.  488,  83  Fed.  151. 

62;  United  States  v.  Gassidy.  67  Fed.  '8   Gyc.   Law  &  Proc.   628,  n.  44. 

698;    United    States    v.    Benson,    17  Gases  cited. 
G.   G.   A.   293,   70   Fed.   591;    United 


189  PLEADING.  [§   2924. 

and  of  an  attempt  to  commit  that  crime  is  one  difficult  to  draw;  in 
some  cases  the  facts  may  support  either  offense.  Two  elements,  there- 
fore, enter  into  the  crime  of  conspiracy:  wrongful  combination  and 
criminal  attempt."®  So  a  joint  attempt  to  commit  a  crime  is  not  nec- 
essarily a  conspiracy.  It  only  rises  to  that  degree  when  the  combina- 
tion is  of  such  a  nature  and  to  such  an  extent  as  to  increase  the  danger 
to  the  public  from  such  an  attempt.  "It  is  the  special  danger  to  the 
public  from  wrongful  acts  that  are  accomplished  through  the  force  of 
combination,  which  has  induced  the  courts  to  treat  an  attempt  to  ac- 
complish such  acts  through  the  force  of  combination  as  a  criminal  at- 
tempt, although  the  acts  may  not  be  criminal  when  committed  or  at- 
tempted otherwise  than  through  a  wrongful  combination  for  tliat  pur- 
pose."i<» 

§  2924.  Pleading  conspiracy. — The  rule  of  pleading  on  this  sub- 
ject is  that  it  is  not  necessary  to  set  out  the  means  used  when  the  com- 
bination or  alleged  conspiracy  is  to  do  an  unlawful  act ;  but  the  means 
adopted  and  used  must  be  fully  stated  when  such  combination  or  con- 
spiracy is  to  do  a  lawful  act  by  unlawful  means  or  methods."  The 
indictment  must  show  either  that  the  object  of  the  conspiracy  or  the 
means  employed  to  accomplish  it  are  criminal.^- 

°  State  V.  Gannon,  75  Conn.  206,  52  State  v.  Roberts,   34  Me.  320;    Peo- 

Atl.  727;   State  v.  Wilson,  30  Conn,  pie  v.  Richards,  1  Mich.  216;  Alder- 

500.  man  v.  People,  4  Mich.  414;   People 

"State  V.  Gannon,  75   Conn.  206,  v.   Clark,    10    Mich.   310;    People   v. 

52  Atl.  727.  Arnold,  46  Mich.  268,  9  N.  W.  406; 

"Smith  V.  People,  25  111.  9;  Mus-  People  v.  Petheram,  64  Mich.  252, 
grave  v.  State.  133  Ind.  297,  32  N.  31  N.  W.  188;  People  v.  Butler,  111 
E.  885;  State  v.  Murphy,  6  Ala.  765,  Mich.  483,  69  N.  W.  734;  People  v. 
41  Am.  Dec.  79;  State  v.  Jones,  13  Dyer,  79  Mich.  480,  44  N.  W.  937; 
Iowa  269;  Commonwealth  v.  Ward,  State  v.  Parker,  43  N.  H.  83;  Com- 
92  Ky.  158,  17  S.  W.  283;  Common-  monwealth  v.  McKisson,  8  S.  &  R. 
wealth  V.  Grinstead,  108  Ky.  59,  55  (Pa.)  420;  Twichell  v.  Common- 
S.  W.  720;  Commonwealth  v.  wealth,  9  Pa.  St.  211;  Hazen  v.  Com- 
O'Brien,  12  Cush.  (Mass.)  84;  Com-  monwealth,  23  Pa.  St.  355;  State  v. 
monwealth  v.  Wallace,  16  Gray  De  Witt,  2  Hill  (S.  Car.)  282;  State 
(Mass.)  221;  Commonwealth  v.  v.  Noyes,  25  Vt.  415;  State  v.  Crow- 
Barnes,  132  Mass.  242;  Common-  ley,  41  Wis.  271;  Pettibone  v.  United 
wealth  V.  Eastman,  1  Cush.  (Mass.)  States,  148  U.  S.  197,  13  Sup.  Ct. 
223;  Commonwealth  v.  Fuller,  132  542;  Wright  v.  United  States,  48  C. 
Mass.  563;  Commonwealth  v.  Mes-  C.  A.  37,  108  Fed.  805;  2  Bishop  New 
erve,   154   Mass.    64,   27    N.   E.    997;  Cr.  Proc,  §  204. 

State  V.  Buchanan,  5  H.  &  J.   (Md.)  '=  State    v.    Jones,    13    Iowa    269; 

317;    State  v.  Bartlett,  30  Me.  132;  State  v.  Bartlett,  30  Me.  132;   State 


§    2925.]  CONSPIKACY.  190 

§  2925.  Pleading — Stating  means  employed. — A  clear  statement 
of  the  rule  is  that  in  cases  where  the  purpose  of  the  conspiracy  itself 
does  not  appear  to  he  unlawful  or  criminal,  then  a  full  and  exact  state- 
ment of  the  means  contemplated  to  carry  it  out  m.ust  be  stated,  and 
the  statement  must  show  that  such  contemplated  means  are  unlawful 
or  criminal.^^  The  Supreme  Court  of  Wisconsin  stated  the  rule  thus: 
"So  the  rule  of  common  law  is,  as  regards  indictments  for  criminal 
conspiracies,  that  where  the  crime  depends  on  the  object  of  the  con- 
spiracy, that  object  must  be  set  forth,  but  the  means  need  not  be ;  but 
where  the  crime  depends  upon  the  charatcer  of  the  means  to  be  em- 
ployed, they  are  material  and  must  be  alleged."^*  Thus,  where  the  pur- 
pose of  the  conspiracy  was  to  cheat  and  defraud,  it  was  held  that  the 
means  used  or  proposed  to  be  used  should  be  set  out  that  the  court 
may  know  that  it  was  a  conspiracy  to  effect  the  proposed  object  by 
illegal  means.^^  On  this  subject  of  pleading  the  Supreme  Court  of 
Massachusetts  stated  the  rule  thus:  "That  when  the  criminality  of 
a  conspiracy  consists  in  an  unlawful  agreement  of  two  or  more  persons 
to  compass  or  promote  some  criminal  or  illegal  purpose,  that  purpose 
must  be  fully  and  clearly  stated  in  the  indictment;  and  if  the  crimi- 
nality of  the  offense,  which  is  intended  to  be  charged,  consists  in  the 
agreement  to  compass  or  promote  some  purpose,  not  of  itself  criminal 
or  unlawful,  by  the  use  of  fraud,  force,  falsehood,  or  other  criminal 
or  unlawful  means,  such  intended  use  of  fraud,  force,  falsehood,  or 
other  criminal  or  unlawul  means  must  be  set  out  in  the  indictment."^** 
But  where  the  object  of  the  conspiracy  was  to  obtain  money  by  false 

V.  Ripley,  31  Me.  386;  Alderman  v.  "Martens  v.  Reilly,  109  Wis.  464, 

People,  4  Mich.  414;  People  v.  Clark,  84  N.  W.  840;    State  v.  Crowley,  41 

10  Mich.  310;  State  v.  Burnham,  15  Wis.    271;     People    v.    Richards,    1 

N.   H.   396;    State  v.  Noyes,   25   Vt.  Mich.  216;  Rex  v.  Gill,  2  B.  &  Aid 

415.  204;  Reg.  v.  King,  7  Q.  B.  782;  Syd- 

^^  Commonwealth  v.  Meserve,   154  serff  v.  Reg.,  11  Q.  B.  245. 

Mass.   64,   27   N.   E.   997;    Common-  ^^^  Commonwealth    v.    Eastman,    1 

wealth  V.  Wallace,  16  Gray  (Mass.)  Cush.   (Mass.)   189;   Commonwealth 

221;     Commonwealth    v.     Hunt,     4  v.  Shedd,  7  Cush.  (Mass.)  514;  Com- 

Metc.    (Mass.)    Ill;    State   v.   May-  monwealth  v.  Hunt,  4  Mete.  (Mass.) 

berry,  48  Me.  218;  Alderman  v.  Pec-  111,  125;  Lambert  v.  People,  9  Cow. 

pie,  4  Mich.  414;  State  v.  Parker,  43  (N.  Y.)    578;    People  v.   Flack,   125 

N.  H.  83;  State  v.  Christianbury,  44  N.  Y.  324,  26  N.  E.  267;   see  cases 

N.  Car.  46;  but  see.  People  v.  Rich-  in  note  13  of  this  section, 

ards,  1  Mich.  216;  People  v.  Arnold,  ^«  Commonwealth  v.  Hunt,  4  Mete. 

46  Mich.  268,  9  N.  W.  406;  People  v.  (Mass.)  111. 
Butler,  111  Mich.  483,  69  N.  W.  734; 
State  V.  Crowley,  41  Wis.  271. 


191  PLEADING — CRIMIXAL  CONSPIRACY.   [§§  2926,  2927. 

pretense,  and  by  false  and  privy  tokens,  and  such  acts  were  themselves 
statutory  crimes,  it  was  held  unnecessary  to  plead  more  specifically 
the  means  employed.^ '^ 

§  2926.  Pleading — Overt  acts — Surplusage. — "\Miile  it  is  unneces- 
sary to  allege  in  the  indictment,  as  a  matter  of  pleading,  that  the  pur- 
pose of  the  alleged  conspiracy  was  accomplished,  yet  whether  it  is 
pleaded  or  not  it  is  not  necessary  to  prove  on  the  trial  in  order  to  estab- 
lish the  conspiracy  that  it  was  in  fact  consummated  and  completed.^^ 
Xor  is  it  necessary,  as  a  matter  of  pleading,  to  allege  any  overt  acts, 
or  to  set  out  any  actual  damage  to  the  person  intended  to  be  defrauded 
or  injured.^^  It  is  also  a  rule  of  pleading  that  if  the  alleged  and  il- 
legal combination  is  imperfectly  and  insufficiently  stated  in  _  the  in- 
dictment, it  will  not  be  aided  by  averments  of  acts  done  in  pursuance 
of  the  conspiracy.-'^ 

§  2927.  Criminal  conspiracy. — The  term  criminal  conspiracy  em- 
bodies its  own  meaning.  The  definitions  given  by  courts  are  in  the  na- 
ture of  illustrations  or  they  indicate  the  elements  entering  into  the 
offense.  No  better  definition  can  be  given  of  criminal  conspiracy  than 
that  stated  by  some  of  the  courts.  These  serve  both  to  define  and  il- 
lustrate, or  to  state  the  essential  elements  entering  into  the  offense. 
Thus,  the  Kentucky  Court  of  Appeals  said  of  it:  "A  criminal  con- 
spiracy is  (1)  a  corrupt  combination  (2)  of  two  or  more  persons,  (3) 
by  concerted  action  to  commit  (4)  a  criminal  or  an  unlawful  act;  (a) 
or  an  act  not  in  itself  criminal  or  unlawful  by  criminal  or  unlawful 
means;  (b)  or  an  act  which  would  tend  to  prejudice  the  public  in  gen- 
eral, to  subvert  justice,  disturb  the  peace,  injure  public  trade,  affect 
public  health,  or  violate  public  policy;  (5)  or  any  act,  however  inno- 
cent, by  means  neither  criminal  nor  unlawful,  where  the  tendency  of 
the  object  sought  would  be  to  wrongfully  coerce  or  oppress  either  the 
public  or  an  individual."-^  The  definition  of  the  Connecticut  court 
is:  "A  criminal  conspiracy  is  a  combination  of  two  or  more  persons 
to  commit  some  crime ;  whether  the  crime  to  be  committed  is  the  ob- 

"  State  V.  Crowley,  41  "Wis.  271.  -°  Commonwealth  v.  Shedd,  7  Cush. 

^''Commonwealth    v.    O'Brien,    12  (Mass.)      514;      Commonwealth     v. 

Cush.  (Mass.)  84.  Hunt,    4    Mete.    (Mass.)    Ill;    Com- 

"  Commonwealth    v.    Fuller,    132  monwealth     v.     Wallace,     16     Gray 

Mass.  563;  State  v.  Straw,  42  N.  H.  (Mass.)  221. 

393;    People   v.   Sheldon,   139   N.   Y.  =^  .^tna  Ins.  Co.  v.  Commonwealth, 

251,  265,  34  N.  E.  785.  106  Ky.  864,  71  S.  W.  624. 


§  2928.]  CONSPIRACY.  193 

ject  of  the  conspiracy,  or  the  means  for  the  accomplishment  of  some 
other  object,  is  immaterial.    A  combination  to  unlawfully  inflict  upon 
another  some  injury  dependent  for  its  successful  accomplishment  upon 
the  force  of  combination,  may  also,  in  certain  instances,  be  a  criminal 
conspiracy,  although  no  act  to  be  done  in  its  execution,  or  in  the  con- 
summation of  its  object,  would  be  a  crime  if  done  independently  of 
the  combination  by  any  one  of  the  conspirators."^"    Or,  as  otherwise 
defined,  "Criminal  conspiracy  is  a  combination  or  a  confederation  of 
two  or  more  persons  to  commit  an  illegal  act,  or  to  perform  a  legal  act 
by  illegal  means  or  in  an  illegal  way.    The  crime  is  effected  the  mo- 
ment the  confederation  is  complete,  though  nothing  be  done  pursuant 
to  the  conspiracy ."^^     On  this  question  the  Supreme  Court  of  New 
York  say :   "But  to  make  an  agreement  between  two  or  more  persons, 
to  do  an  act  innocent  in  itself,  a  criminal  conspiracy,  it  is  not  enough 
that  it  appears  that  the  act  which  was  the  object  of  the  agreement  wa.s 
prohibited.    The  confederation  must  be  corrupt.    The  agreement  must 
have  been  entered  into  with  an  evil  purpose,  as  distinguished  from  a 
purpose  simply  to  do  the  act  prohibited  in  ignorance  of  the  prohibi- 
tion.   This  is  implied  in  the  meaning  of  the  word  conspiracy."-*    The 
Supreme  Court  of  Massachusetts  long  ago  recognized  the  common- 
law  rule  in  regard  to  conspiracy,  and  admitted  that  it  was  in  force  in 
that  commonwealth.    But  of  this  rule  it  said :    "The  general  rule  of 
the  common  law  is  that  it  is  a  criminal  and  indictable  offense  for  two 
or  more  to  confederate  and  combine  together,  by  concerted  means,  to 
do  that  which  is  unlawful  or  criminal,  to  the  injury  of  the  public,  or 
portions  or  classes  of  the  community,  or  even  to  the  rights  of  an  in- 
dividual.    This  rule  of  law  may  be  equally  in  force  as  a  rule  of  the 
common  law^  in  England  and  in  this  commonwealth ;  and  yet  it  must 
depend  upon  the  local  laws  of  each  country  to  determine  whether  the 
purpose  to  be  accomplished  by  the  combination,  or  the  concerted  means 
of  accomplishing  it  be  unlawful  or  criminal  in  the  respective  coun- 
tries."" 

§2928.     Criminal    conspiracy— Maryland    rule.— Maryland    fur- 
nishes a  very  old  and  leading  case  of  this  country  on  the  subject  of 

==  State  V.  Gannon,  75  Conn.  206,  "People  v.  Powell,  63  N.  Y.  88; 

52    Atl.    727.      See    also,    State    v.  People  v.   Flack,  125  N.  Y.  324,  26 

Stockford,  (Conn.)  58  Atl.  769.  N.  E.  267. 

^  Commonwealth      v.      Bliss,      12  "-''  Commonwealth  v.  Hunt,  4  Mete. 

Phila.  (Pa.)  580;  State  v.  Straw,  42  (Mass.)  111. 
N.    H.    393;    United   States   v.    Lan- 
caster, 44  Fed.  896. 


193  MEANING   OF   TEIlM    "UNLAWFUL."  [§    2929. 

criminal  conspiracy.  The  points  on  which  it  was  held  that  an  indict- 
ment would  lie  at  common  law  were  collected  and  arranged  in  the 
syllabus  as  follows :  "1.  For  a  conspiracy  to  do  an  act  not  illegal,  nor 
punishable  if  done  by  an  individual,  but  immoral  only.  3.  For  a  con- 
spiracy to  do  an  act  neither  illegal  nor  immoral  in  an  individual,  but 
to  effect  a  purpose  which  has  a  tendency  to  prejudice  the  public.  3. 
For  a  conspiracy  to  extort  money  from  another,  or  to  injure  his  reputa- 
tion by  means  not  indictable  if  practiced  by  an  individual,  as  by  verbal 
defamation,  and  that  whether  it  be  to  charge  him  with  an  indictable 
offense  or  not.  4.  For  a  conspiracy  to  cheat  and  defraud  a  third  per- 
son, accomplished  by  means  of  an  act  which  would  not  in  law  amount 
to  an  indictable  cheat,  if  effected  by  an  individual.  5.  For  a  malicious 
conspiracy  to  impoverish  or  ruin  a  third  person  in  his  trade  or  pro- 
fession. 6.  For  a  conspiracy  to  defraud  a  third  person  by  means  of  an 
act  not  per  se  unlawful,  and  though  no  person  be  thereby  injured.  7. 
For  a  bare  conspiracy  to  cheat  or  defraud  a  third  person,  though  the 
means  of  effecting  it  should  not  be  determined  on  at  the  time.  8.  A 
conspiracy  is  a  substantive  offense,  and  punishable  at  common  law, 
though  nothing  be  done  in  execution  of  it."-^ 

§  2929.  "Unlawful" — Meaning. — The  meaning  of  the  word  un- 
lawful in  the  definition  of  conspiracy  is  both  important  and  control- 
ling. Its  construction  is  reasonable  for  the  suppression  of  crime  on 
the  one  hand  and  with  due  regard  for  the  rights  of  the  criminal  on  the 
other.  The  rule  generally  asserted  and  maintained,  except  when 
changed  by  statute,  is  that  it  is  not  necessary  to  prove  that  the  act  for 
the  commission  of  which  the  conspiracy  or  combination  is  formed  was 
in  itself  criminal ;  neither  is  it  required  to  show  that  the  means  used 
or  employed  in  the  commission  of  the  act  are  in  themselves  criminal. 
In  either  case  it  is  sufficient  if  it  is  made  to  appear  that  the  acts  or 
the  means  are  in  fact  unlawful.  Such  acts  and  means  are  regarded  in 
law  as  unlawful  when  they  are  shown  to  be  in  the  nature  of  torts  or 
wrongs  for  the  perpetration  and  commission  of  which  the  law  permits 
the  recovery  of  exemplary  damages  in  civil  actions."  And  it  answers 

^'^  State   V.   Buchanan,   5    H.   &   J.  (Mass.)  Ill;  Alderman  v.  People,  4 

(Md.)    317;    Alderman   v.   People,   4  Mich.  414;  Ellzey  v.  State,  57  Miss. 

Mich.  414,  431.  826;    Hart  v.  Hicks,  129  Mo.  99,  31 

=■' State   V.    Glidden,    55    Conn.    46,  S.  W.  351;   .Tohnson  v.  State,  26  N. 

70,  8  Atl.  890;   Smith  v.  People,  25  J.  L.  313;  Green  v.  Tuchner,  87  App. 

111'.  17;    Cole  v.  People,  84  111.  21G;  Div.    (N.  Y.)    314,  84  N.  Y.  S.   345; 

Commonwealth    v.    Hunt.    4    Mete.  Cote  v.  Murphy,  159  Pa.  420,  28  Atl. 

Vol.  4  Elliott  Ev. — 13 


§  2930.]  CONSPIRACY.  194 

the  test  of  unlawfulness  where  the  combination  is  for  the  purpose  of 
cheating  or  defrauding  an  individual  or  a  private  corporation,  al- 
though the  fraud  alone  may  not  be  indictable.^^  And  a  conspiracy  to 
cheat  and  defraud  the  public  by  means  which  common  care  and  ordi- 
nary prudence  are  not  sufficient  to  guard  against,  has  been  held  to  be 
sufficient  within  the  meaning  of  the  term  unlawful.^^  As  stated  in 
an  English  case :  "It  is  enough,  if  the  acts  agreed  to  be  done,  although 
not  criminal  are  wrongful,  i.  e.,  amount  to  a  civil  wrong."^"  It  is  no 
answer  to  a  charge  of  conspiracy  to  assume  or  prove  that  the  object 
was  lawful.  It  is  a  fundamental  proposition  that  where  it  appears- 
that  the  means  used  to  effect  a  lawful  purpose  be  unlawful  the  offense 
is  established.  The  unlawfulness  of  the  means  employed  in  such  a 
case  must  be  fully  shown  by  proper  statements  in  the  affidavit  and 
established  by  proof  on  the  trial. ^^ 

§  2930.     "tTnlawful" — ^Wisconsin  and  New  Hampshire  rule. — On 

this  question  the  Supreme  Court  of  Wisconsin  very  aptly  say:  "The 
word  'unlawful'  is  not  confined  to  criminal  acts.  It  includes  all  wil- 
ful, actionable  violations  of  civil  rights.  In  any  case  the  object  of  the 
combination  is  what  gives  it  legal  significance.  If  that  object  be  to 
do  an  unlawful  act  in  the  sense  of  committing  an  actionable  wrong, 
the  means  contemplated  by  the  combination  to  effect  such  object  are 
not  material  to  the  cause  of  action,  whether  such  action  be  to  punish 
the  perpetrators  for  entering  into  such  a  combination  or  to  recover  of 
them  the  damages  inflicted  by  carrying  out  its  object.  If  the  ol:)jec-t 
of  the  conspiracy  be  the  use  of  unlawful  means,  whether  such  means 

190;    Payne  v.  Western  &c.  Co.,  13  E.  620;  State  v.  Dyer,  67  Vt.  690,  32 

Lea   (Tenn.)  507;  Callan  v.  Wilson,  Atl.  814;    Dayton  Mfg.  Co.  v.  Metal 

127  U.  S.  540,  8  Sup.  Ct.  1301;  United  Polishers  &c.   Union,   8   Ohio  N.   P. 

States  V.  Johnson,  26  Fed.  682;  Reg.  574,    11    Ohio   Dec.    643;    Moores   v. 

V,  Parnell,  14  Cox  Cr.  Cas.  508.  Bricklayers'    Union,    10    Ohio    Dec. 

^See  §  2933.  (Reprint)    665,  23  Cin.  L.  Bui.  48; 

^People  V.  Stephens,  71  N.  Y.  527;  Beck    v.    Railway    &c.    Union,    118 

People  V.  Olson,  39  N.  Y.  St.  295,  15  Mich.  497,  77  N.  W.  13;  Rex  v.  Jones, 

N.    Y.    S.    778;    People    v.    Stone,    9  4  B.  &  Ad.  345. 

Wend.  (N.  Y.)  188;  Lambert  v.  Peo-         ''"Reg.  v.  Warburton,  L.  R.  1  C.  C. 

pie,  9  Cow.    (N.  Y.)    578;    People  v.  274. 

Willis,  24  Misc.    (N.  Y.)    537,  54  N.         ''State  v.  Burnham,  15  N.  H.  396; 

Y.  S.  129;  Commonwealth  v.  Mifflin,  Rex  v.  Seward,  1  Ad.  &  E.  706;  Rex 

5  W.  &  S.  (Pa.)  462;  Commonwealth  v.    Eccles,    3    Doug.    337;    2    Russell 

T.  Gallagher,  4  Pa.  L.  J.  58;  Crump  Crimes  569.     See  also.  United  States 

V.  Commonwealth,  84  Va.  927,  6   S.  v.  Grunberg,  131  Fed.  137. 


195  PUBLIC    INJURY.  [§    3031. 

be  the  violation  of  the  civil  or  criminal  law,  the  unlawfulness  of  the 
end  sought  to  be  attained  is  not  controlling  either  in  a  prosecution  for 
the  offense  of  so  conspiring  or  an  action  to  recover  the  damages  suf- 
fered by  the  consummation  of  the  wrongful  purpose."^^  And  the  Su- 
preme Court  of  Xew  Hampshire  say  on  this  subject :  "When  it  is  said 
in  the  books  that  the  means  must  amount  to  indictable  offenses,  iu 
order  to  make  the  offense  of  conspiracy  complete,  it  will  be  enough 
if  they  are  corrupt,  dishonest,  fraudulent,  immoral,  and  in  that  sense 
illegal,  and  it  is  in  the  combination  to  make  use  of  such  practices  that 
the  dangers  of  this  offense  consist.  Conspiracies  may  be  indictable  where 
neither  the  object,  if  effected,  nor  the  means  made  use  of  to  accomplish 
it,  would  be  punishable  without  the  conspiracy.  In  the  case  of  a  con- 
spiracy among  journe3anen  to  raise  their  wages,  the  object  of  the  coa- 
spiracy  is  lawful,  and  the  means  by  which  the  object  is  to  be  effected 
are  not  otherwise  than  as  the  conspiracy  makes  them  so." 

§  2831.  Public  injuries. — The  ruie  established  by  the  authorities 
in  the  preceding  section  very  conclusively  shows  that  a  conspiracy  is 
not  necessarily  a  combination  to  commit  a  crime,  or  that  the  means 
to  be  used  are  in  themselves  criminal.  Many  offenses  against  society 
not  in  themselves  criminal,  become  so  if  perpetrated  by  a  combination 
of  persons.  There  may  be  many  offenses  against  society  which  might 
be  considered  unlawful  but  which  the  law  does  not  punish  criminally. 
But  the  test  of  criminality  in  offenses  against  the  public  must  be  de- 
termined largely  if  not  solely  from  the  influence  and  effect  which  the 
acts  might  produce  upon  society.  This  principle  was  stated  by  one 
court  thus :  "And  in  determining  what  sort  of  conspiracy  may  or  may 
not  be  entered  into  without  committing  an  offense  punishable  by  the 
common  law,  regard  must  be  had  to  the  iniiuence,  which  the  act,  if 
done,  would  actually  have  upon  society,  without  confining  the  question 
to  the  inquiry  whether  the  act  might  itself  subject  the  offender  to 
criminal  punishment."^*  In  an  early  Connecticut  case  it  was  conceded 

^Martens  v.  Reilly,  109  Wis.  464,  12  Pick.  (Mass.)  173;  Beck  v.  Team- 

84  N.  W.  840.  sters'  &c.  Union.  118  Mich.  497,  77 

^  State  v.  Burnham,  15  N.  H.  396;  N.  W.  13;   State  v.  Burnham,  15  N. 

State  V.  Buchanan,  5  H.  &  J.  (Md.)  H.   396:    State   v.   Straw,   42   N.   H. 

317.  393;    People  v.   Stephens,   71  N.   Y. 

^*  Smith  v.  People,  25  111.  17;  Ochs  527;  Lambert  v.  People,  9  Cow.   (N. 

v.  People,  25  111.  App.  379;  Common-  Y.)    578;    People   v.   Tweed,  5   Hun 

wealth  v.  Ward.  92  Ky.  158,  17   S.  (N.    Y.)    353;    People    v.    Stone,    9 

W.  283;   Commonwealth  v.  Manley,  Wend.  (N.  Y.)  188;  People  v.  Olson, 


§    2931.]  CONSPIRACY  196 

"that  many  acts  which,  if  done  by  an  individual,  are  not  indictable, 
are  punished  criminally,  when  done  in  pursuance  of  a  conspiracy 
among  members,  is  too  well  settled  to  admit  of  controversy."^^  In  a 
very  recent  case  in  the  same  court  it  was  said :  "The  combination  of 
numbers  to  accomplish  a  wrongful  act  is  a  special  danger  to  public 
morals,  rights  of  property,  and  the  public  peace,  and  for  this  reason  it 
is  treated  as  an  independent  ofEense  whenever  it  is  the  first  step  toward 
the  commission  of  a  crime.  It  is  then  an  attempt  to  commit  a  crime, 
but  a  joint  attempt  to  commit  a  crime  cannot  be  punished  as  a  con- 
spiracy unless  there  is  a  combination  of  such  a  nature  as  to  increase 
the  danger  to  the  public  from  the  attempt.  It  is  the  special  danger  to 
the  public  from  wrongful  acts  that  are  accomplished  through  the  force 
of  combination,  which  has  induced  the  courts  to  treat  an  attempt  to 
accomplish  such  acts  through  the  force  of  combination  as  a  criminal 
attempt,  although  the  acts  may  not  be  criminal  when  committed  or 
attempted  otherwise  than  through  a  wrongful  combination  for  that 
purpose."^^  Conspiracies  against  the  public  are  made  criminal  for  the 
purpose  of  affording  protection  to  the  weak  as  well  as  the  strong,  and 
to  protect  such  persons  so  lacking  in  common  care  and  ordinary  pru- 
dence that  they  are  unable  to  guard  themselves  against  conspiracies 
to  cheat  and  defraud.  "The  design  of  the  law  is  to  protect  the  weak 
and  credulous  from  the  wiles  and  stratagems  of  the  artful  and  eun- 

39  N.  Y.  St.  295,  15   N.  Y.   S.  778;  228;  Rex  v.  Mott.  2  Car.  &  P.  521,  12 

People  V.  Willis,  24  Misc.    (N.  Y.)  E.  C.  L.  244;   Reg.  v.  Gompartz,  9 

537,  54  N.  Y.  S.  129;   State  v.  Tram-  Q.  B.  824,  58  E.  C.  L.  824;   Reg.  v. 

mell,  2  Ired.  L.  (N.  Car.)   379;  Mif-  Esdaile,    1    F.    &    F.    213;    Reg.    v. 

flin   v.   Commonwealth,    5   W.   &    S.  Brown,  7  Cox  Cr.  Cas.  442;  Reg.  v. 

(Pa.)  461;  Hazen  v.  Commonwealth,  Gurney,  11  Cox  Cr.  Cas.  414;   Reg. 

23  Pa.  St.  355;   Crump  v.  Common-  v.  Warburton,  11  Cox  Cr.  Cas.  584. 
wealth,  84  Va.  620,  6  S.  E.  620;  State         ='  State  v.  Rowley,  12  Conn.  101. 
V.  Young,  37  N.  J.  L.  184;  Wood  v.         '"State  v.  Gannon,  75  Conn.  206, 

State,  47  N.  J,  L.  461,  1  Atl.  509;  52  Atl.  727;   State  v.  Donaldson,  32 

Madden  v.  State,  57  N.  J.  L.  324,  30  N.  J.  L.  151;   State  v.  Young,  37  N. 

Atl.  541;   Perkins  v.  Rogg,  11  Ohio  J.  L.  184;  State  v.  Cole,  39  N.  J.  L. 

Dec.  (Reprint)  585;  Commonwealth  324;   State  v.  Hickling,  41  N.  J.  L. 

v.   Stambaugh,   22   Pa.    Super.   386;  208;  Noyes  v.  State,  41  N.  J.  L.  418; 

Clary  v.  Commonwealth,  4   Pa.   St.  Johnson  v.  State,  26  N.  J.  L.  313; 

210;    State    v.    DeWitt.    2    Hill    (S.  State  v.  De  Witt.  2  Hill   (S.  Car.) 

Car.)   282;   State  v.  Cardoza,  11  S.  282;    State  v.   Shooter,  8  Rich.    (S. 

Car.  195;   State  v.  Dyer,  67  Vt.  690.  Car.)    72;    State  v.  Buchanan,  5  H. 

32  Atl.  814;   Rex  v.  De  Berenger,  3  &  J.   (Md.)   317;   State  v.  Burnham, 

M.    &    S.    57;     Rex    v.    Roberts,    1  15  N.  H.  396;  State  v.  Parker,  43  N. 

Campb.  399;  Rex  v.  Turner,  13  East  H.  83. 


197  PUBLIC  INJURY.  [§   2932. 

ning,  as  well  as  those  whose  vigilance  and  sagacity  enable  them  to  pro- 
tect themselves."^^  This  rule  of  the  policy  of  the  law  to  protect  the 
public  has  been  carried  to  the  extent  of  holding  that  it  is  sufficient  to 
state  in  the  indictment  that  the  purpose  of  the  conspiracy  was  to 
cheat  and  defraud  divers  citizens  of  a  particular  locality  or  the  public 
generally.^*  On  the  same  subject  the  Massachusetts  court  say:  '"'It 
is  said  to  be  sufficient  if  the  end  proposed,  or  means  to  be  employed, 
are  by  reason  of  the  power  of  the  combination,  particularly  dangerous 
to  the  public  interests,  or  particularly  injurious  to  some  individual, 
although  not  criminal."^^ 

2932.  Public  injuries — New  Hampshire  rule. — The  Supreme 
Court  of  New  Hampshire  has  given  expression  in  favor  of  protecting 
against  conspiracies  to  injure  the  public  as  follows:  "Combinations 
against  law  or  against  individuals  are  always  dangerous  to  the  public 
peace  and  to  public  security.  To  guard  against  the  union  of  individ- 
uals to  effect  an  unlawful  design,  is  not  easy,  and  to  detect  and  punish 
them  is  often  extremely  difficult.  The  unlawful  confederacy  is,  chere- 
fore,  punished  to  prevent  any  act  in  execution  of  it.  This  principle 
is  the  foundation  of  the  adjudged  cases  upon  this  subject.  But  the 
law  by  no  means  intends  to  exclude  society  from  the  benefits  of  united 
effort  for  legitimate  purposes,  and  such  as  promote  the  well  being  of 
individuals  or  of  the  public.  It  uses  the  word  conspiracy  in  its  bad 
sense.  An  act  may  be  immoral  without  being  indictable  where  the 
isolated  acts  of  an  individual  are  not  so  injurious  to  society  as  to  re- 
quire the  intervention  of  the  law.  But  when  immoral  acts  are  com- 
mitted by  numbers,  in  furtherance  of  a  common  object,  and  with  the 
advantages  and  strength  which  determination  and  union  impart  to 
them,  they  assume  the  grave  importance  of  a  conspiracy,  and  the  peace 
and  order  of  societv  require  their  repression."*" 

"  McKee  v.  State,  111  Ind.  378,  12  Clary   v.    Commonwealth,   4   Pa.   St. 

N.  E.  510;    Miller  v.   State,  79  Ind.  210;  Commonwealth  v.  Judd,  2  Mass. 

198;  Smith  v.  State,  17  Am.  L.  Reg.  329;  Reg.  v.  Peck,  9  Ad.  &  E.  686; 

525,    16    Am.    L.    Reg.    321-325;    2  Rex  v.  De  Berenger,  3  M.  &  S.  67; 

Wharton    Cr.    Law,    §§,   1186,    1187,  2  Bishop  Cr.  Law,  §  209;  2  Wharton 

1188;  2  Bishop  Cr.  Law,  §§  433,  434.  Cr.  Law,  §  1396. 

''McKee  v.  State,  111  Ind.  378,  12  ="  Commonwealth     v.     Waterman, 

N.  E  510;  People  v.  Arnold,  46  Mich.  122  Mass.  43. 

268,  9  N.  W.  406;    Collins  v.   Com-  '"State  v.  Burnham,  15  N.  H.  396. 
monwealtb,   3   S.  &  R.    (Pa.)    220; 


§§  2933,  2934.]  coxspiracy.  198 

§  2933.  Private  injuries. — Some  courts  have  carried  tlie  doctrine 
of  indictable  conspiracy  to  the  extent  of  holding  that  it  is  sufficient  to 
establish  a  conspiracy  to  show  a  combination  to  defraud  an  indi- 
vidual or  a  corporation.  There  is  apparently  no  good  reason  for  the 
rule  that  the  conspiracy  or  combination  should  be  so  formidable  as  to 
be  a  menace  to  the  public.  Of  this  the  New  Jersey  court  say:  "The 
great  weight  of  authority,  the  adjudged  cases,  no  less  than  the  most 
approved  elementary  writers,  sustain  the  position  that  a  conspiracy  to 
defraud  individuals  or  a  corporation  of  their  property,  may,  in  itself 
constitute  an  indictable  offense,  though  the  act  done,  or  proposed  to 
be  done,  in  pursuance  of  the  conspiracy,  be  not,  in  itself,  indictable."*^ 
And  it  was  said  by  the  Supreme  Court  of  North  Carolina  in  an  early 
case  that  "it  has  long  been  established  that  every  conspiracy  to  injure 
individuals  or  to  do  acts  which  are  unlawful,  or  prejudicial  to  the  com- 
munity, is  a  conspiracy  and  indictable."*^  On  the  question  of 
whether  or  not  the  combination  to  injure  a  private  person  is  lawful 
or  unlawful,  it  was  held  to  be  determined  by  whether  or  not  the  means 
by  which  the  object  was  to  be  accomplished  are  lawful  or  unlawful.*^ 

§  2934.  Order  of  proof. — The  rule  that  some  proof  of  a  conspir- 
acy is  necessary  in  order  to  justify  the  admission  of  acts  and  declara- 
tions of  one  of  the  co-conspirators  does  not  necessarily  control  the 
order  of  proof.  As  previously  seen,  the  admissibility  of  such  evidence 
is  largely  within  the  discretion  of  the  trial  court,  and  he  determines 
when  the  sufficient  prima  facie  case  has  been  made.  For  like  reasons 
he  may  also  control  the  order  of  proof.  It  has  been  held  that  the 
state  may  prove  such  acts  and  declarations  of  one  of  the  conspirators 
done  and  made  in  the  absence  of  the  other,  before  any  proof  of  the 
conspiracy  is  offered.**     The  trial  court  will  frequently  admit  evi- 

^  State  V.  Norton,  23  N.  J.  L.  33 ;  "  Commonwealth  v.  Hunt,  4  Mete. 

State  V.  Donaldson,  32  N.  J.  L.  151;  (Mass.)  111. 

State   V.   Burnham,   15   N.   H.   896;  **  People    v.    Brotherton,    47    Cal. 

Clinton  v.  Estes,  20  Ark.  216;  Lam-  388;  2  Green  Crimes  444;  People  v. 

bert  V.  People,  9  Cow.  (N.  Y.)  578;  Daniels,  105  Cal.  262,  38  Pac.  720; 

State  V.  Huegin,  110  Wis.  189.  85  N.  State  v.  Thompson,  69  Conn.  720,  38 

W.    1046;    Alderman    v.    People,    4  Atl.  868;  State  v.  Mushrush,  97  Iowa 

Mich.  414;    State  v.  Stewart,  59  Vt.  444,  66  N.  W.  746;  Miller  v.  Dayton, 

273,   9  Atl.   559;    State  v.   Dyer.   67  57  Iowa  423,  10  N.  W.  814;  State  v. 

Vt.  690,  32  Atl.  814;   Callan  v.  Wil-  Winner,  17  Kans.  298;  State  v.  Rog- 

son,  127  U.  S.  540,  8  Sup.  Ct.  1301.  ers,  54  Kans.  683,  39  Pac.  219;  Peo- 

*»  State  V.  Young,  12  N.  Car.  257.  pie  v.  Saunders.  25  Mich.  119;  State 


199 


ORDER  OF  PROOF — TWO  OR  MORE  ENGAGED.     [§  2935. 


dence  of  the  acts  and  declarations  of  one  of  the  conspirators  before 
any  proof  of  the  conspiracy  is  offered,  on  the  statement  of  counsel 
that  sufficient  or  satisfactory  evidence  on  the  subject  of  the  con- 
spiracy will  thereafter  be  introduced.** 

§  2935.  Two  or  more  engaged. — The  term  conspiracy  implies  a 
<;ombination  of  two  or  more  persons,  and  the  rule  is  that  to  autliorize 
a  conviction  for  conspiracy  the  proof  must  show  that  more  than  one 
person  was  engaged.  Where  one  conspirator  only  is  on  trial  the  proof 
must  show  that  some  other  person  was  also  guilty.**'  The  rule  as 
fo  pleading  has  been  stated  thus:  "An  indictment  for  conspiracy 
cannot  charge  the  offense  against  one  only,  for  the  very  nature  and 
essense  of  the  crime  exclude  the  idea  of  its  commission  by  a  single 
individual.  But  the  indictment  may  allege  that  the  defendant,  to- 
gether with  other  persons,  committed  the  offense."**  Where  more 
than  two  persons  are  charged  as  conspirators  it  has  been  held  sufficient 
if  the  proof  show  that  two  of  them  were  guilty,  and  that  the  charge 
as  to  the  others  was  surplusage.  It  was  held  not  essential  that  the 
proof  show  that  all  were  guilty.*^     But  in  prosecutions  for  conspiracy 


V.  Ross,  29  Mo.  32;  State  v.  Daubert, 
42  Mo.  239;  State  v.  Walker,  98  Mo. 
95,  9  S.  W.  646,  11  S.  W.  1133;  State 
V.  Melrose,  98  Mo.  594,  12  S.  W.  250; 
State  V.  Flanders,  118  Mo.  227,  23 
S.  W.  1086;  Hart  v.  Hicks,  129  Mo. 
99,  31  S.  W.  351;  Lamar  v.  State,  63 
Miss.  265;  State  v.  Faulkner.  175 
Mo.  546,  591,  75  S.  W.  116;  State  v. 
Kennedy,  177  Mo.  98,  75  S.  W.  979; 
State  V.  Nell,  79  Mo.  App.  243;  Place 
V.  Minster,  65  N.  Y.  89;  State  v. 
Jackson,  82  N.  Car.  565;  State  v. 
Anderson,  92  N.  Car.  732;  Avery  v. 
State,  10  Tex.  App.  199,  211;  1 
Greenleaf  Ev.,  §  111;  3  Greenleaf 
Ev.,  §  92;  3  Rice  Ev.,  §  581;  2  Whar- 
ton Cr.  Law  (8th  ed.),  §.  401;  Un- 
derhill  Cr.  Ev.,  §  494. 

"=  State  V.  Faulkner,  175  Mo.  546, 
591,  75  S.  W.  116;  State  v.  Grant,  86 
Iowa  216,  53  N.  W.  120;  Work  v. 
McCoy,  87  Iowa  217,  54  N.  W.  140; 
Place  V.  Minster.  65  N.  Y.  89;  Owens 
V.  State,  16  Lea  (Tenn.)  1;  Arm- 
stead  V.  State,  22  Tex.  App.  51,  2  S. 


W.  627;  Hall  v.  State,  31  Fla.  176, 
12  So.  449. 

"Evans  v.  People,  90  111.  384;  Carl 
Corper  &c.  Co.  v.  Minwegen  &c.  Co., 
77  111.  App.  213;  State  v.  Christian- 
bury,  44  N.  Car.  46;  People  v.  Rich- 
ards, 67  Cal.  412,  7  Pac.  828;  State 
V.  O'Donald,  1  McCord  (S.  Car.) 
532;  State  v.  Egan,  10  La.  Ann.  698; 
People  V.  Olcott,  2  Johns.  Cas.  (N. 
Y.)  301;  Gaunce  v.  Backhouse,  37 
Pa.  St.  350;  Commonwealth  v.  Ir- 
win, 8  Phila.  (Pa.)  380;  Common- 
wealth V.  Manson,  2  Ashm.  (Pa.) 
31;  State  v.  Jackson,  7  Rich.  (S. 
Car.)  283;  United  States  v.  Dunbar, 
27  C.  C.  A.  488,  83  Fed.  151;  United 
States  V.  Hirsch.  100  U.  S.  33; 
United  States  v.  Cassidy,  67  Fed. 
698;  2  Wharton  Cr.  Law,  §§  755, 
2339;  2  Russell  Crimes  674. 

"1  Bishop  Cr.  Proc,  §§  225.  464; 
2  Wharton  Cr.  Law,  §  1388;  People 
V.  Richards,  67  Cal.  412,  7  Pac.  828. 

"Woodworth  v.  State.  20  Tex. 
App.  375 


§  2936.]  CONSPIRACY.  200 

any  one  of  the  conspirators  may  be  proceeded  against  alone,  and  may 
be  tried  and  convicted ;  the  fact  that  other  conspirators  are  named 
in  the  indictment  does  not  render  it  bad.*"  So  one  person  may  be 
indicted  for  a  conspiracy  with  other  persons  to  the  grand  jurors  un- 
known.^'' For  these  reasons  it  has  been  held  that  a  husband  and 
wife,  being  regarded  as  one  person  by  the  common  law,  could  not 
be  indicted  and  prosecuted  for  a  criminal  conspiracy  between  them 
alone.     And  it  seems  tliat  this  rule  has  not  been  changed  by  statute.^^ 

§  2936.  Proof  of  conspiracy. — No  precise  rule  can  be  given  either 
as  to  the  nature  or  degree  of  proof  sufficient  to  establish  the  fact 
of  a  conspiracy.  The  law  recognizes  the  difficulty  in  making  direct 
and  positive  proof  of  the  unlawful  agreement,  and  hence  does  not 
require  the  strictest  possible  proof  of  the  fact  of  the  conspiracy.  It  is 
usually  established  by  proof  of  such  facts  and  circumstances  from 
which  the  unlawful  combination  may  be  inferred.  Mr.  Greenleaf 
states  the  rule  as  follows:  "If  it  be  proved  that  the  defendants  pur- 
sued by  their  acts  the  same  object,  often  by  the  same  means,  one  per- 
forming one  part  and  another  another  part  of  the  same  so  as  to 
complete  it,  with  a  view  to  the  attainment  of  the  same  object,  the 
jury  will  be  justified  in  the  conclusion  that  they  were  engaged  in  a 
conspiracy  to  effect  that  object."^^  The  rule  is  stated  by  Mr.  Wharton 
thus:  "The  actual  fact  of  conspiring  may  be  inferred,  as  has  been 
said,  from  circumstances,  and  the  concurring  conduct  of  the  defend- 
ants need  not  be  directly  proved.  Any  joint  action  on  a  material 
point,  or  a  collection  of  independent  but  co-operative  acts,  by  persons 
closely  associated  with  each  other,  is  held  to  be  sufficient  to  enable 

*»  People  V.  Richards,  67  Cal.  412,  Archer  v.  State,  106  Ind.  426,  7  N. 

7  Pac.  828;  2  Bishop  Cr.  Proc,  §  225.  E.   225;    Tucker  v.   Hyatt,   151   Ind. 

=»2  Wharton  Cr.  L.,  §  1388.  332,  51  N.  E.  469;   State  v.  Walker, 

"  People  V.  Miller,  82  Cal.  107,  22  98  Mo.  95,  9  S.  W.  646,  11  S.  W.  1133; 

Pac.  934;  People  v.  Richards,  67  Cal.  Hart  v.  Hicks,  129  Mo.  99,  31  S.  W. 

412,   7   Pac.   828;    State  v.   Clark,   9  851;    State  v.  Kennedy,  177  Mo.  98, 

Houst.  (Del.)  536,  33  Atl.  310;  State  75   S.   W.   979;    State  v.   Rogers,   54 

V.  Christianbury,  44  N.  Car.  46  Kans.  683,  39  Pac.  219;  United  States 

"=3  Greenleaf  Ev.,  §  93;   People  v.  v.  Cole,  5  McLean   (U.  S.)   513,  601; 

Bentley,   75    Cal.   407,   17   Pac.   436;  Reg.  v.  Brittain,  3  Cox  Cr.  Cas.  76; 

State  V.  Thompson,  69  Conn.  720,  38  2  Bishop  Cr.  Proc,  §  227;   2  Whar- 

Atl.    868;    Ochs   v.    People,    124    111.  ton  Cr.  Law.   §§  1398,  1401;    Whar- 

399,  16  N.  E.  662;   Redding  v.  God-  ton  Cr.  Ev.,  §  698;  1  Taylor  Ev.  (Pt. 

win,   44  Minn.   355.  46   N.  W.   563;  2),  §  591;  see  §  2937. 


201  PROOF  OF  CONSPIRACY.  [§  2937. 

the  jury  to  infer  concurrence  of  sentiment.''"'^  The  rule  has  been 
very  fairly  stated  by  the  Supreme  Court  of  California  as  follows: 
"A  conspiracy,  like  most  other  facts,  may  be  proved  by  circumstantial 
evidence.  Indeed,  it  is  not  often  that  the  direct  facts  of  a  common 
design,  which  is  the  essence  of  a  conspiracy,  can  be  proven  other- 
wise than  by  the  establishment  of  independent  facts,  bearing  more 
or  less  remotely  upon  the  main  central  object,  and  tending  to  con- 
vince the  mind  reasonably  and  logically  of  the  existence  of  the  coa- 
spiracy."^* 

§  2937.  Proof  of  conspiracy — Sufficiency. — To  establish  the  of- 
fense there  must  be  proof  of  an  unlawful  combination ;  but  this  may 
be  established  by  proof  of  concerted  action  which  is  in  itself  unlawful. 
It  is  not  sufficient  to  establish  the  guilt  of  one  of  the  conspirators 
to  prove  that  he  was  merely  present  at  the  execution  or  consummation 
of  the  conspiracy ;  but  some  word  or  act  must  be  shown  to  have  been 
said  or  done  in  furtherance  of  the  conspiracy.  It  is  sufficient,  how- 
ever, to  show  that  the  accused  either  incited,  procured  or  encouraged 
the  act.^^  Nor  is  it  necessary  to  show  that  the  accused  entered  into 
the  arrangement  at  the  inception  of  the  conspiracy;  it  is  sufficient 
if  the  proof  shows  that  he  joined  it  at  any  time  after  its  formation ; 
if  he  joins  it  at  any  time  he  thereby  becomes  a  conspirator  and  adopts 
the  acts  of  his  associates.^*' 

'''2   Wharton   Cr.  Law    (9tli  ed.),  Hauser  v.  Tate,  85  N.  Car.  81;  State 

§  1398.  V.  Anderson,  92  N.  Car.  732;    Com- 

"  People  V.  Bentley,  75  Cal.  407,  17  monwealth  v.  Bartilson.  85  Pa.  St. 

Pac.  436.  482;    Raleigh  &c.  Bros.  v.  Cook,  60 

'■'Martin  v.   State,  89  Ala.  115,   8  Tex.  438;  Blain  v.  State,  33  Tex.  Cr. 

So.  23;  Gibson  v.  State,  89  Ala.  121,  App.  236,  26  S.  W.  63;   Connaughty 

8   So.   98;    Crittenden   v.   State,   134  v.  State,  1  Wis.  159;   Holtz  v.  State, 

Ala.  145,  32  So.  273;  Wright  v.  State,  76  Wis.  100,  44  N.  W.  1107;  1  Whar- 

42  Ark.  94;  People  v.  Woodward,  45  ton  Cr.  Law,  §§  211b,  227;   2  Whar- 

Cal.   293;    Evans   v.   People,   90   111.  ton  Cr.  Law,  §  1402. 
384;    Spies  v.  People,  122  111.  1,  12         '"United    States    v.    Johnson,    26 

N.  E.    865,   17   N.   E.    898;    Clem   v.  Fed.  682;   United  States  v.  Cassidy, 

State,   33    Ind.   418;    State   v.   King,  67  Fed.  698;    United  States  v.  Bab- 

104  Iowa  727.  74  N.  W.  691;  Thomp-  cock,  3  Dill.  (U.  S.)  586;  Stewart  v. 

son  V.  Commonwealth,  1  Mete.  (Ky)  State.  26  Ala.  44;    State  v.  Clark.  9 

13;  Butler  V.  Commonwealth,  2  Duv.  Iloust.  (Del.)  536,  33  Atl.  310;  Ochs 

(Ky.)    435;    State  v.  Ripley,  31  Me.  v.  People,  124  111.  399,  16  N.  E.  662; 

386;  State  v.  Cox,  65  Mo.  29;  Kelley  McKee  v.  State,  111  Ind.  378,  12  N. 

v.  People,  55  N.  Y.  565;    Brannock  E.  510;   State  v.  Crab,  121  Mo.  554, 

V.  Bouldin,  4  Ired.  L.  (N.  Car.)  61;  26   S.  W.  548;    Den  v.  Johnson,  18 


§  -2938.]  coxspiRACY.  202 

§  2938.  Proof  of  formal  agreement  not  necessary. — The  rule  re- 
quiring proof  to  establish  the  existence  of  a  conspiracy  is  a  reason- 
able one  for  the  guidance  of  practical  men  in  the  administration  of 
justice.  That  the  conspiracy  must  be  established  by  proof  is  uni- 
formly conceded  by  the  adjudicated  cases.  But  the  method  of  estab- 
lishing it  is  not  the  subject  of  a  general  rule.  The  law  does  not 
require  the  actual  proof  of  a  formal  agreement  nor  does  it  require 
proof  of  the  conspiracy  by  direct  or  positive  evidence.  The  very 
nature  of  the  crime  is  such  as  to  render  difficult  and  often  unprac- 
tioable  proof  of  a  formal  agreement  or  to  establish  the  conspiracy 
by  direct  evidence.  The  law  does  not  require  the  prosecution  to  prove 
that  the  alleged  conspirators  came  together  and  actually  agreed  in 
terms  to  a  common  design  and  to  pursue  it  by  common  means.  The 
common  intent  or  the  joint  assent  of  minds  may  be  inferred  from 
facts  and  circumstances,  and  the  offense  may  be  established  by  proof 
that  the  conspirators,  by  their  acts,  pursued  the  same  object,  using 
the  same  or  different  means,  each  performing  some  part  and  all 
working  toward  the  accomplishment  of  the  same  object.  Such  proof 
is  held  sufficient  to  justify  the  inference  that  the  parties  so  acting 
were  engaged  in  the  alleged  conspiracy.^^  The  conspiracy,  or  the 
agreement  which  constitutes  the  alleged  conspiracy,  is  not  required 
to  be  established  by  direct  and  positive  evidence ;  this  fact,  like  others 

N.  J.  L.  87;  Owens  v.  State,  16  Lea  State,  106  Ind.  426,  7  N.  E.  225;  Mc- 

(Tenn.)    1;    Smith  v.  State.    (Tex.)  Kee  v.  State,  111  Ind.  378,  12  N.  K. 

17    S.    W.    560;     Stevens    v.    State,  510;   Tucker  v.  Hyatt,  151  Ind.  332, 

(Tex.)    59    S.    W.    545;    Hudson    v.  51  N.  E.  469;  State  v.  King,  104  Iowa 

State,    (Tex.)    66  S.  W.  668;    Sands  727,  74  N.  W.  691;  Commonwealth  v. 

v.  Commonwealth,   21  Gratt.    (Va.)  Eastman,  1  Cush.  (Mass.)  189;  Peo- 

871;  Holtz  V.  State,  76  Wis.  100,  44  pie  v.  Flack.  125  N.  Y.  324,  26  N.  E. 

N.  W.  1107.  267;    People  v.   Saunders,  25  Mich. 

'*■  Williams  v.  State,  81  Ala.  1,  1  119;   Beebe  v.  Knapp,  28  Mich.  53; 

So.  179;  Gibson  v.  State,  89  Ala.  121,  People  v.  Butler,  111  Mich.  483,  69 

8  So.  98;  Tanner  v.  State,  92  Ala.  1,  N.  W.  734;   United  States  v.  Rinds- 

9  So.  613;  Pierson  v.  State,  99  Ala.  kopf,  6  Biss.  (U.  S.)  259;  United 
148,  13  So.  550;  Collins  v.  State,  138  States  v.  Nunnemacher,  7  Biss.  (U. 
Ala.  57,  34  So.  993;  State  v.  Thomp-  S.)  Ill;  United  States  v.  Doyle,  6 
son,  69  Conn.  720,  38  Atl.  868;  State  Sawy.  (U.  S.)  612;  United  States  v. 
v.  Gannon,  75  Conn.  206,  52  Atl.  Sacia,  2  Fed.  754;  United  States  v. 
727;  Evans  v.  People,  90  111.  384;  Prisbie,  28  Fed.  808;  United  States 
Spies  V.  People,  122  111.  1,  12  N.  E.  v.  Cassidy,  67  Fed.  698;  Drake  v. 
865,  17  N.  E.  898;  Ochs  v.  People,  Stewart,  22  C.  C.  A.  104,  76  Fed. 
124  111.  399,  16  N.  E.  662;  O'Donnell  140.  See  also,  State  v.  Stockford, 
V.  People,  41  111.  App.  23;  Archer  v.  (Conn.)  58  Atl.  769. 


203  DECLARATIONS    AND    ADMISSIONS.  [§    2939. 

in  criminal  procedure,  may  be  inferred.  This  rule  has  been  stated 
thus:  "The  joint  assent  of  the  minds  of  the  parties  to  a  conspiracy 
may  be  found  by  the  jury,  like  any  other  ultimate  fact,  as  an  infer- 
•ence  from  other  facts.'"' ^  The  prosecution  is  not  required  to  prove 
that  all  the  conspirators  were  present  and  participated  either  at  the 
inception  or  at  the  consummation  of  the  conspiracy.'^  Where  the 
proof  shows  an  unlawful  combination,  or  a  combination  to  do  an  un- 
lawful thing,  and  in  the  prosecution  of  the  common  design  by  one 
or  more  of  the  alleged  conspirators  a  criminal  result  is  accomplished, 
though  different  from  the  particular  result  intended,  all  are  guilty.*'"' 

§  2939.  Ikclajations  of  co-conspirator — Admissibility  as  evidence. 
It  is  perhaps  the  universal  rule  that  any  act  done,  or  any  declaration 
made,  by  any  one  of  the  conspirators  in  the  furtherance  or  perpetra- 
tions of  the  alleged  conspiracy  may  be  given  in  evidence  against  him- 
Belf  or  his  co-conspirators.  This  rule  has  been  more  aptly  stated 
as  follows :  "The  law  undoubtedly  is,  that  where  two  or  more  persons 
combine  or  associate  together  for  the  prosecution  of  some  fraudulent 
or  illegal  purpose,  any  act  or  declaration  made  by  one  of  them  in 
furtherance  of  the  common  object,  and  forming  a  part  of  the  res 
gestae,  may  be  given  in  evidence  against  the  other."^^      Of  this  rule 

■^^  Drake  v.   Stewart,   22   C.   C.   A.  643;   People  v.  Bentley,  75  Cal.  407. 

104,  76  Fed.  140;  Glaspie  v.  Keator,  17  Pac.   646;    People  v.  Bentley,  77 

5  C.  C.  A.  474,  56  Fed.  203;   Archer  Cal.  7,  18  Pac.  799;  People  v.  Irwin, 

V.  State,  106  Ind.  426,  7  N.  E.  225;  77   Cal.  404,   20   Pac.   56;    People  v. 

Spies  V.  People,  122  111.  1,  12  N.  E.  Dixon,  94  Cal.  255,  29  Pac.  504;  State 

865,  17  N.  E.  898.  v.  Thompson,  69  Conn.  720,  38  Atl. 

="•  Spies  V.   People,   122    111.    1,   12  868;    Wilson  v.  People.  94  111.  299; 

N.  E.  865.  17  N.  E.  898;  see  §  2937,  Wolfe  v.  Pugh,  101   Ind.  293;    Card 

for  additional  authorities.  v.  State,  109  Ind.  415,  9  N.  E.  591; 

«'•  Spies  V.  People,  122  111.  1,  12  N.  Moore  v.   Shields,   121   Ind.   267,  23 

E.   865,  17  N.   E.   898;    Williams  v.  N.  E.  89;  State  v.  Westfall,  49  Iowa 

State,  81  Ala.  1,  1  So.  179;    Gibson  328;  Johnson  v.  Miller,  63  Iowa  529. 

v.  State,  89  Ala.  121,  8  So.  98;  Jolly  17  N.  W.  34;  State  v.  MeGee,  81  Iowa 

V.  State,  94  Ala,  19,  10  So.  606;  Ev-  17,  46  N.  W.  764;   State  v.  Johnson, 

ans  V.  State,  109  Ala.  11,  19  So.  535;  40  Kans.  266,  19   Pac.   749;    People 

Bridges  v.  State,  110  Ala.  15,  20  So.  v.  Pitcher,  15  Mich.  397;    People  v. 

348;  People  v.  Holmes,  118  Cal.  444,  Parker.  67  Mich.  222,  34  N.  W.  720; 

50  Pac.  675.  State  v.  Faulkner,  175  Mo.  546,  591, 

"  Phcenix  Ins.  Co.  V.  Moog,  78  Ala.  75    S.   W.    116;    State   v.    George,    7 

284;  Collins  v.  State,  138  Ala.  57,  34  Ired.  L.    (N.  Car.)    321;    Waterbury 

■So.  993;  Smith  v.  State,  133  Ala.  73,  v.    Sturtevant,    18    Wend.     (N.    Y.) 

31  So.  942;  People  v.  Geiger,  49  Cal.  353;  Jones  v.  Hurlburt,  39  Barb.  (N. 


§  2940.]  CONSPIRACY.  204 

the  Supreme  Court  of  Indiana  said:  "The  principle  on  which 
the  acts  and  declarations  of  other  conspirators,  and  acts  done  at 
different  times,  are  admitted  in  evidence  against  the  persons  prose- 
cuted is,  that,  by  the  act  of  conspiring  together,  the  conspirators  have 
jointly  assumed  to  themselves,  as  a  body,  the  attribute  of  individuality, 
so  far  as  regards  the  prosecution  of  the  common  design,  thus  render- 
ing whatever  is  done  or  said  by  any  one,  in  furtherance  of  that  design, 
a  part  of  the  res  gestae,  and,  therefore,  the  act  of  all."^^  Substantially 
the  same  rule  applies  in  criminal  as  in  civil  cases  as  to  the  admissi- 
bility of  the  acts  or  declarations  of  one  conspirator  as  original  evi- 
dence against  each  member  of  the  conspiracy.®^ 

§  2940.  Declarations  of  co-conspirator — Preliminary  proof. — Cer- 
tain preliminary  proof  is  required  before  proof  of  the  acts  or  declara- 
tions of  an  alleged  co-conspirator  can  be  given  in  evidence.  Before 
these  are  admissible  some  proof  from  other  sources  must  be  given 
for  the  purpose  of  establishing  or  tending  to  establish  the  alleged 
conspiracy.  The  conspiracy  itself  cannot  be  established  by  proof  of 
the  mere  acts  and  declarations  of  one  of  the  conspirators.  The  rule 
on  this  subject  has  been  stated  thus :  "To  authorize  such  declarations 
to  be  received,  however,  so  as  to  effect  co-conspirators,  it  is  clear  that 
certain  proof  must  first  be  made  aliunde,  in  establishment  of  the 
conspiracy  itself.  Xothing  is  more  certain  than  the  proposition  that 
the  conspiracy  cannot  be  proved  merely  by  the  declarations.  The 
rule  is  precisely  analogous  to  that  governing  the  admissions  and 
declarations  of  agents  when  offered  in  evidence  against  the  prin- 
cipal."«* 

Y.)  403;  Patton  v.  State,  6  Ohio  St.     kins  v.  State,  35   Fla.   737,  821,  18 


467;  Fouts  v.  State,  7  Ohio  St.  471 
Preston  v.  Bowers,  13  Ohio  St.  1 
Clawson  v.  State,  14  Ohio  St.  234 
Rufer  V.  State,  25  Ohio  St.  464 
Hunter's  Case,  7  Gratt.   (Va.)    641 


So.  182;  Owens  v.  State,  16  Lea 
(Tenn.)  1;  Cortez  v.  State,  24  Tex. 
App.  511,  6  S.  W.  546;  Armstead  v. 
State,  22  Tex.  App.  51,  2  S.  W.  627. 
«  Card  v.  State,  109  Ind.  415,  9  N. 


Heine  v.  Commonwealth,  91  Pa.  St.  E.  591. 

145;  Owens  v.  State,  16  Lea  (Tenn.)         "Phoenix  Ins.  Co.  v.  Moog,  78  Ala. 

1;    Myers  v.  State,  6  Tex.  App.  1;  284;   People  v.  Geiger,  49  Cal.  643; 

3  Greenleaf  Ev..  §  94.  Wolfe  v.  Pugh,  101  Ind.  293;  Smith 

«^Ford  V.   State,  112  Ind.  373,  14  v.  Freeman,  71  Ind.  85;  Johnson  v. 

N.   E.   241;    Moore   v.    Shields,    121  Miller,  63   Iowa  529,   17  N.  E.   34; 

Ind.    267,    23    N.    E.    89;     State    v.  Burke   v.    Miller,    7   Cush.    (Mass.) 

Thaden,  43  Minn.  253,  45  N.  W.  447;  547;    Exchange  Bank  v.  Russell,  50 

Clinton  v.  Estes,  20  Ark.  216;   Jen-  Mo.  531;  State  v.  Walker,  98  Mo.  95, 


205  DECLARATIONS  OF  CO-COXSPIKATOR.  [§    2941. 

§  2941.  Declarations  of  co-conspirator — Prima  facie  case. — The 
rule  requiring  sojiie  proof  of  a  conspiracy  in  order  to  render  the 
acts  and  declarations  of  a  co-conspirator  admissible  is  reasonable ;  and 
while  its  purpose  is  to  protect  the  accused  against  the  admissibility 
of  improper  proofs,  yet  it  is  not  intended  to  operate  to  the  prejudice 
of  the  due  administration  of  justice.  The  rule  is  not  carried  to  the 
extent  of  holding  that  the  conspiracy  must  be  established  beyond  a 
reasonable  doubt,  or  even  to  the  satisfaction  of  the  jury.  The  rule 
requires  no  more  than  proof  sufficient  to  establish,  in  the  opinion  of 
the  trial  judge,  a  prima  facie  case  on  the  proposition  of  the  existence 
of  the  conspiracy.  And  when  in  the  sound  discretion  of  the  trial 
judge  he  is  satisfied  that  a  sufficient  prima  facie  case  of  the  conspiracy 
has  been  made,  he  then  admits  the  evidence  of  the  acts  and  declara- 
tions of  any  one  of  the  co-conspirators  against  the  other.  This  rule 
has  been  thus  stated:  "If  the  evidence  already  offered  aliunde  in  proof 
of  the  conspiracy,  or  tending  to  prove  it,  is  sufficient,  in  the  opinion 
of  the  presiding  judge,  to  authorize  the  jury  to  find  in  favor  of  the 
'  fact  of  its  existence,  this  makes  out  a  prima  facie  case  and  lets  in 
the  declarations  made  by  any  co-conspirator  during  the  pendency  of 
the  enterprise  and  in  furtherance  of  its  objects."*'^  This  prima  facie 
ease  is  not  required  to  be  established  by  positive  or  direct  evidence, 

9  S.  W.  646;  Hart  v.  Hopson,  52  Mo.  646;   State  v.  Flanders,  118  Mo.  227, 

App.  177;   Ormsby  v.  People,  53  N.  23  S.  W.  1086;  State  v.  Kennedy,  177 

Y.  472;    Helser  v.  McGrath,  58   Pa.  Mo.   98,   75    S.   W.   979;    Ormsley  v. 

St.  458.  People,  53  N.  Y.  472;  Jones  v.  Hurl- 

«=  Phcenix  Ins.  Co.  V.  Moog,  78  Ala.  burt,   39    Barb.    (N.   Y.)    403;    Car- 

284;    McAnally  v.  State,  74  Ala.  9;  penter  v.  Shelden,  5  Sandf.   (N.  Y.) 

Williams  v.  State,  81  Ala.  1,  1  So.  77;   State  v.  George,  7  I  red.  L.   (N. 

179;    Hunter  v.   State,  112  Ala.  77.  Car.)  321;  Clawson  v.  State,  14  Ohio 

21  So.  65;   Smith  v.  State,  133  Ala.  St.  234;   Limerick  v.  State,  14  Ohio 

73,  31  So.  942;  Collins  v.  State,  138  C.  C.   207;    Coins  v.  State,  46  Ohio 

Ala.  57.  34  So.  993;  People  v.  Kelly,  St.  457,  21  N.  E.  476;  State  v.  Roach, 

133   Cal.    1,   64    Pac.   1091;    State  v.  35  Ore.  224,  57  Pac.  1016;  Pacific  &c. 

Thompson,  69  Conn.  720,  38  Atl.  868;  Co.  v.  Gentry,  38  Ore.  275,  61  Pac. 

Foster  v.  Thrasher,  45  Ga.  517;  Card  422;    State  v.  Moore,  32  Ore.  65,  48 

v.  State,  109  Ind.  415,  9  N.  E.  591;  Pac.  468;  Roberts  v.  Briscoe,  1  Ohio 

Roberts  v.  Kendall,  3  Ind.  App.  339,  C.  C.  577;  Ditzler  v.  State,  4  Ohio  C. 

29   N.    E.   487;    State  v.    McGee,    81  C.    551;     Owens    v.    State,    16    Lea 

Iowa  17,  46  N.  W.  764;  State  v.  Row,  (Tenn.)    1;    Myers  v.   State,  6  Tex. 

81  Iowa  138.  46  N.  W.  872;  People  v.  App.  1;  Baker  v.  State,  80  Wis.  416, 

Parker,  67  Mich.  222,  34  N.  W.  720;  50  N.  W.  518;  1  Greenleaf  Ev.,  §  111; 

Browning   v.    State,    30    Miss.    656;  1  Wharton  Cr.  Ev.,  §  1205;   State  v. 

State  v.  Walker.  98  Mo.  95,  9  S.  W.  Stockford,  (Conn.)  58  Atl.  769. 


§§  2943,  2943.]  conspiracy.  20G 

but  may  be  made  to  appear  by  proof  of  circumstances  from  which  it 
may  be  inferred. ^^  And  the  rule  in  some  jurisdictions  is  that  where 
there  is  any  evidence  at  all  supporting  the  decision  of  conspiracy  the 
judgment  will  not  be  reversed.^'' 

§  2942.  Prima  facie  case — Sufficiency. — Ko  definite  rule  can  be 
given  as  to  what  will  constitute  a  sufficient  prima  facie  case  in  order 
to  render  admissible  the  acts  and  declarations  of  a  co-conspirator. 
While  the  admissibility  of  such  evidence  is  for  the  trial  court,  its 
decision  on  this  question  is  subject  to  review,  and  an  appellate  court 
will  reverse  the  judgment  where  it  appears  that  srch  proof  was  ad- 
mitted when  a  prima  facie  case  had  not  been  established.  The  illus- 
trative cases  to  this  point  are  safer  to  follow  than  any  general  rule 
that  can  be  deduced  and  stated.^* 

§  2943.     Declarations  of  co-conspirators — ^Limitations  to  rule. — The 

rule  as  to  the  admission  of  acts  and  declarations  of  a  co-conspirator 
must  not  be  misunderstood,  and  must  not  be  extended  beyond  its  legiti- 
mate limits.  The  authorities  go  to  the  proposition  that  the  acts  or 
statements  competent  to  be  proved  must  have  been  done  or  made 
in  the  prosecution  of  the  criminal  conspiracy,  or  in  the  furtherance 

«"  Hunter  v.  State,  112  Ala.  77,  21  insufficient  to  establish  prima  facie 

So.  65.  case:    People  v.  Stevens,  68  Cal.  113, 

"Hunsinger    v.    Hofer,    110    Ind.  8  Pac.  712;  People  v.  Kelly,  133  Ca!. 

390,  11  N.  E.  463;  Doherty  v.  Holli-  1,  64  Pac.  1091;  Foster  v.  Thrasher, 

day,  137  Ind.  282.  295,  32  N.  E.  315.  45    Ga.    517;    Belcher   v.    State,    125 

»''(1)  Proof  held  sufficient  to  Ind.  419,  25  N.  E.  545;  Henrich  v. 
establish  prima  facie  case:  Hunter  Saier,  124  Mich.  86,  82  N.  W.  879; 
V.  State,  112  Ala.  77,  21  So.  65;  Mc-  Hart  v.  Hicks,  129  Mo.  99,  31  S.  W. 
Anally  v.  State,  74  Ala.  9;  People  351;  Hart  v.  Hopson,  52  Mo.  App. 
V.  Geiger,  49  Cal.  643;  People  v.  177;  State  v.  Weaver,  165  Mo.  1,  65 
Dixon,  94  Cal.  255,  29  Pac.  504;  S.  W.  308;  Strange  v.  Common- 
State  V.  Thompson,  69  Conn.  720,  38  wealth,  23  Ky.  L.  R.  1234,  64  S.  W. 
Atl.  868;  Smith  v.  Freeman,  71  Ind.  980;  People  v.  Bennett,  49  N.  Y.  137; 
85;  Card  v.  State,  109  Ind.  415,  9  Ormsby  v.  People,  53  N.  Y.  472;  Car- 
N.  E.  591;  Tucker  V.  Hyatt,  151  Ind.  penter  v.  Shelden,  5  Sandf.  (N.  Y.) 
3S2,  51  N.  E.  469;  State  v.  Row,  81  77;  State  v.  Roach,  35  Ore.  224,  57 
Iowa  138,  46  N.  W.  872;  McMannus  Pac.  1016;  Girdner  v.  Walker,  1 
V.  Lee,  43  Mo.  206;  State  v.  Walker,  Heisk.  (Tenn.)  186;  Martin  Brown 
?8  Mo.  95,  9  S.  W.  646,  11  S.  W.  1133;  Co.  v.  Perrill,  77  Tex.  199,  13  S.  W. 
State  V.  Kennedy,  177  Mo.  98.  75  975;  Young  v.  State,  (Tex.  Cr.  App.) 
S.  W.  979;  People  v.  Parker,  67  69  S.  W.  153;  People  v.  Radt,  71  N. 
Mich.  222,  34  N.  W.  720;  Scott  v.  Y.  S.  846;  1  Greenleaf  Ev.,  §  111; 
State,  30  Ala.  403;    (2)   Proof  held  Wharton  Cr.  Ev.,  §  698. 


2or 


DECLARATIONS  AFTER  CONSPIRACY. 


[§    29-1-i.. 


of  the  object  or  common  design  of  the  conspiracy.*®  So  it  has  beert 
held  that  the  admissibility  of  the  acts  and  declarations  of  a  conspir- 
ator are  proper  only  when  they  are  either  in  themselves  acts  or  accom- 
pany and  explain  acts  for  which  the  others  are  responsible;  but  that 
they  are  not  admissible  when  in  the  nature  of  narratives,  descriptions 
or  subsequent  confessions^" 

§  2944.  Declarations  made  after  conspiracy  terminated — Rule 
and  exceptions. — There  is  another  limitation  on  the  rule  admitting 
the  declarations  of  a  co-conspirator  as  evidence.  This  limitation  is 
to  the  effect  that  declarations  made  by  one  of  the  conspirators  after 
the  conspiracy  has  been  effected  and  the  crime  perpetrated,  or  the 
object  of  the  conspiracy  defeated,  are  not  admissible  in  evidence 
against  any  except  the  person  making  them.''^  But  the  rule  that  dec- 
larations of  a  conspirator  made  after  the  conspiracy  is  terminated 
are  not  admissible  is  subject  to  some  exceptions.  These  exceptions 
embrace  the  cases  where  the  property  obtained  as  a  result  of  the  con- 


^  Hunter  v.  State,  112  Ala.  77,  21 
So.  65;  People  v.  Stanley,  47  Cal. 
113;  State  v.  Glldden,  55  Conn.  46, 
8  Atl.  890;  Spies  v.  People,  122  111. 
1,  12  N.  E.  865;  Card  v.  State,  109 
Ind.  415,  9  N.  E.  591;  State  v.  Mc- 
Gee,  81  Iowa  17,  46  N.  W.  764;  Peo- 
ple V.  Kerr,  6  N.  Y.  Cr.  406,  6  N.  Y. 
S.  674;  State  v.  Row,  81  Iowa  138, 
46  N.  W.  872;  Goins  v.  State,  46  Ohio 
457,  21  N.  E.  476;  State  v.  Johnson, 
40  Kans.  266;  19  Pac.  749;  Wilson 
V.  People,  94  111.  299;  State  v.  Ar- 
nold, 48  Iowa  566;  State  v.  Westfall, 
49  Iowa  328;  Patton  v.  State,  6  Ohio 
St.  467;  Clawson  v.  State,  14  Ohio 
St.  234;  Fonts  v.  State,  7  Ohio  St. 
471;  Griffin  v.  State,  14  Ohio  St.  55; 
Rufer  V.  State,  25  Ohio  St.  464; 
Sharpe  v.  State,  29  Ohio  St.  263; 
Searles  v.  State.  6  Ohio  C.  C.  331. 

"State  v.  Ross,  29  Mo.  32;  State 
V.  Cooper,  85  Mo.  256;  State  v.  Mel- 
rose, 98  Mo.  594,  2  S.  W.  250;  Spies 
v.  People,  122  111.  1,  12  N.  E.  865; 
Powers  v.  Commonwealth,  22  Ky.  L. 
R.  1807,  61  S.  W.  735;  State  v.  Lark- 


in,  49  N.  H.  39;  Clawson  v.  State,  14 
Ohio  St.  239;  Rufer  v.  State,  25  Ohio 
St.  464;  State  v.  Newport,  4  Har. 
(Del.)  567;  State  v.  Thibeau,  30  Vt. 
100;  Dilcher  v.  State,  42  Ohio  St. 
173. 

"People  v.  Irwin,  77  Cal.  494,  20 
Pac.  56;  People  v.  Stanley.  47  Cal. 
113,  118;  People  v.  Aleck,  61  Cal. 
138;  Spies  v.  People,  122  111.  1,  12 
N.  E.  865;  Samples  v.  People,  121 
111.  547;  Moore  v.  Shields,  121  Ind. 
267,  23  N.  E.  89;  State  v.  Ross,  29 
Mo.  32;  State  v.  Melrose,  98  Mo. 
594,  12  S.  W.  250;  State  v.  Johnson. 
40  Kans.  266,  19  Pac.  749;  Blue  v. 
Peter,  40  Kans.  701,  20  Pac.  442; 
State  V.  Rogers,  54  Kans.  683,  39 
Pac.  219;  State  v.  Buchanan,  35  La. 
Ann.  89;  Patton  v.  State,  6  Ohio  St. 
467;  State  v.  Tice,  30  Ore.  457,  48 
Pac.  367;  State  v.  Magone,  32  Ore. 
206,  51  Pac.  452;  State  v.  Hinkle,  33 
Ore.  33,  54  Pac.  155;  Pacific  &c.  Co. 
V.  Gentry,  38  Ore.  275,  61  Pac.  422; 
Helser  v.  McGrath,  58  Pa.  St.  458;. 
3  Greenleaf  Ev.,  §§  111,  233. 


§  2945.]  CONSPIRACY.  208 

spiracy  remained  to  be  disposed  of  to  the  common  interest  of  all,  or 
where  such  declarations  were  made  with  reference  to  a  subsisting 
interest  in  the  property  acquired  pursuant  to  the  conspiracy." 

§  2945.  Proof  when  co-conspirators  are  not  named. — The  ques- 
tion has  arisen  as  to  the  admissibility  of  the  acts  and  declarations  of 
one  of  the  conspirators  where  the  indictment  failed  to  allege  a 
conspiracy,  or  failed  to  set  out  the  names  of  the  co-conspirators.  On 
this  question  the  authorities  are  not  uniform.  The  weight  of  author- 
ity is  in  favor  of  their  admissibility,  but  the  better  reasoning  is  cer- 
tainly with  the  cases  holding  against  it.  The  rule  in  favor  of  the 
admissibility  is  thus  stated  by  Mr.  Wharton :  "It  makes  no  difference 
as  to  the  admissibility  of  the  act  or  declarations  of  a  conspirator 
against  a  defendant,  whether  the  former  be  indicted  or  not,  or  tried 
or  not,  with  the  latter ;  for  the  making  one  a  co-defendant  does  not 
make  his  acts  or  declarations  any  more  evidence  against  another  than 
they  were  before;  the  principle  upon  which  they  are  admissible  at 
all  being  that  the  act  or  declaration  of  one  is  the  act  or  declaration 
of  all  united  in  one  common  design,  a  principle  which  is  wholly 
unaffected  by  the  consideration  of  their  being  jointly  indicted."'^^ 
The  Supreme  Court  of  Missouri,  in  a  recent  case,  after  referring  to 
the  authorities  on  both  propositions,  concluded  as  follows:  "While 
we  are  constrained  to  hold  in  accordance  with  the  rule  announced  by 
Mr.  Wharton,  we  do  so  very  reluctantly,  for  certainly  the  better  prac- 
tice is,  to  make  all  of  the  conspirators  parties  defendant  to  the  indict- 
ment, or  to  aver  therein  the  existence  of  such  conspiracy,  the  parties 
thereto  if  known,  and  their  purpose,  for  then  the  defendant  upon  trial 
will  have  reason  to  anticipate  what  evidence  will,  or  may  be,  offered 
against  him,  and  to  prepare  to  meet  the  same ;  otherwise  he  will  not."^* 
On  the  contrary  doctrine  the  Supreme  Court  of  Louisiana  say:  "It 
is  too  elementary  to  require  reasoning,  that  if  the  indictment  did  not 
charge  a  conspiracy,  the  conversations  were  not  admissible."^^ 

"Scott  v.  State,  30  Ala.  503;  Clin-  Pac.   422;    Baker  v.   State,   80   Wis. 

ton  V.  Estes,  20  Ark.  216;    Card  v.  416,  50  Pac.  518. 

State,   109    Ind.   415,   9   N.   E.    591;  "Wharton  Cr.  Ev.,  §  700;  Bishop 

Commonwealth  v.  Smith,  151  Mass.  New    Cr.    Proc,    §§    1248,    1249;    3 

491,  24  N.  E.  677;   State  v.  Thaden,  Greenleaf  Ev.,  §  92. 

43  Minn.  253,  45  N.  W.  447;  Pacific  '*  State  v.  Kennedy,  177  Mo.  98,  75 

&c.   Co.  v.  Gentry,   38  Ore.   275,  61  S.  W.  979. 

"  State  V.  Carroll,  31  La.  Ann.  860. 


209  OVERT  ACT.  [§§  2946,  2947. 

§  2946.  Overt  acts — Proof  of  not  required. — As  the  criminal  con- 
spiracy consists  in  the  corrupt  agreement  or  combination  to  commit 
an  illegal  act,  or  to  commit  some  act  detrimental  to  others  by  unlawful 
means,  it  is  therefore  evident  that  the  crime  is  complete  when  the 
unlawful  purpose  or  agreement  is  consummated.  It  is  the  generally 
recognized  rule  that  proof  of  any  overt  acts  in  furtherance  of  the  com- 
mon design,  is  unnecessary;  in  seeking  to  establish  the  offense  it  is 
sufficient  to  prove  the  corrupt  or  the  unlawful  arrangement  and 
combination  without  making  or  offering  any  proof  whatever  as  to  its 
completion  or  consummation.  The  rule  is  well  stated  as  follows: 
"A  conspiracy  is  in  and  of  itself  a  distinct,  substantive  offense ;  com- 
plete when  the  corrupt  agreement  is  entered  into;  the  agreement  is 
the  gist  of  the  offense.  It  is  not  necessary  that  any  act  should  be 
done  in  pursuance  of  the  agreement ;  nor  is  the  offense  purged  because 
subsequent  events  may  render  the  consummation  of  the  agreement  im- 
possible, or  because  the  conspirators  are  entrapped  in  an  attempt  at 
its  consummation."'^^  It  is  said  "the  essence  of  the  offense  is  the 
criminal  combination,  and  no  overt  act  is  necessary  to  constitute  it."'^ 
This  rule  seems  to  be  based  on  the  theory  that  the  conspirators  pre- 
sume that  their  scheme  will  not  be  discovered  or  frustrated,  and  that 
it  will  proceed  until  the  object  is  attained.  When  their  purpose  is 
thwarted  they  cannot  escape  on  the  ground  of  innocence  because  the 
scheme  miscarried.''^  The  rule  that  proof  of  overt  acts  is  not  required 
to  establish  the  conspiracy  is  not  intended  to  exclude  such  proof.  It  is 
competent  and  proper  to  prove  such  overt  acts  because  of  their  bearing 
upon  the  evidence  of  the  conspiracy  itself,  and  for  the  further  reason 
that  such  evidence  is  proper  in  considering  the  punishment  to  be  in- 
flicted.'^" 

§  2947.  Overt  acts — ^When  proof  necessary. — There  are  cases 
holding  that  imder  certain  circumstances  proof  of  overt  acts  is  neces- 
sary in  order  to  establish  the  crime  of  conspiracy.     These  cases  are 

•»  Thompson  v.  State,  106  Ala.  67,  son  v.  State.  3  Tex.  App.  590;   Mar- 

17  So.  512;  Commonwealth  v.  Ward,  tens  v.   Reilly,  109  Wis.  464,  84  N. 

92  Ky.  158,  17  S.  W.  283;   Common-  W.  840;  United  States  v.  Watson,  17 

wealth  V.  Judd,  2  Mass.  329;  People  Fed.  145. 

v.  Saunders,  25  Mich.  119;  St.  Louis  "'State  v.  Wilson,  30  Conn.  500. 

V.  Fitz,  53  Mo.  582;   State  v.  Straw,  "Musgrave  v.  State,  133  Ind.  297, 

42  N.  H.   393;    People  v.   Mather,  4  32  N.  E.  885. 

Wend.   (N.  Y.)   229;   Commonwealth  '^People  v.  Arnold,  46  Mich.  268, 

V.  Bliss,  12  Phila.   (Pa.)   580;   John-  9  N.  W.  406. 
Vol.  4  Elliott  Ev. — 14 


§  2948.]  CONSPIRACY.  210 

for  the  most  part  under  particular  statutes  either  giving  a  special 
definition  for  conspiracy  and  prescribing  the  proof  to  establish  it,  or 
where  the  conspiracy  was  to  commit  a  misdemeanor.*"  Where  a 
statute  changed  the  common  law  rule  and  required  some  proof  of 
overt  acts  it  was  held  that  proof  must  show  both  the  conspiracy  and 
some  overt  act.*^  But  it  has  been  expressly  held  that  such  overt  act. 
required  to  be  proved  need  not  be  in  itself  criminal,  or  amount  to  a 
crime.*2  It  is  sufficient,  however,  if  the  overt  act  proved  was  done  by 
any  one  of  the  alleged  conspirators.* ^  Under  this  rule  it  has  been  held 
that  a  party  who  did  not  join  in  the  original  conspiracy  cannot  be  con- 
victed.** 

§  2948.  Overt  acts  and  conspiracy  merged. — There  is  a  class  of 
cases  holding  that  where  the  proof  shows  that  the  conspiracy  had  been 
carried  into  execution,  and  the  crime  itself  actually  committed,  the 
conspiracy  is  merged  in  the  crime  and  there  can  be  no  conviction  for 
the  conspiracy  as  a  separate  ofEense.  The  authorities  are  not  har- 
monious on  this  doctrine,  but  in  a  general  way  arrange  themselves  into 
three  separate  classes:  (1)  one  class  establishes  the  principle  that, 
when  the  proof  shows  a  conspiracy  to  commit  a  higher  offense  and 
the  offense  is  actually  commited,  the  conspiracy  is  merged;*^  (2)  a 
second  class  holds  that  when  the  proof  shows  that  the  conspiracy  and 
the  crime  are  of  the  same  grade  there  is  no  merger;*^  (3)  and  a  third 

'"People  V.  Daniels,  105  Cal.  262,  218,   238;    Commonwealtli  v.  Kings- 

38  Pac.  720;  People  v.  Flack,  125  N.  bury,   5   Mass.   106;    Commonwealtli 

Y.  324,  26  N.  E.  267.  v.    O'Brien,    12    Cush.     (Mass.)     84; 

=' People  V.  Sheldon,  139  N.  Y.  251,  People    v.    Richards,    1    Mich.    217; 

34    N.    B.    785;     United    States    v.  People  v.  Aronld,  46  Mich.  268,  9  N. 

Hirsch,  100  U.  S.  33;  United  States  W.  406;   People  v.  Mather,  4  Wend. 

V.  Smith,  2  Bond  (U.  S.)  323;  United  (N.  Y.)  229,  265;  State  v.  Noyes,  2S 

States  V.  Barrett,  65  Fed.  62;  United  Vt.  415;  Lambert  v.  People,  9  Cow. 

States  V.  Cassidy,  67  Fed.  698.  (N.  Y.)  578;  Elkin  v.  People,  28  N. 

'^United   States  v.   Thompson,   12  Y.  177;    People  v.  McKane,  7  Misc. 

Sawy.  (U.  S.)  151.  (N.  Y.)  478,  28  N.  Y.  S.  397;  People- 

"United  States  v.  Barrett,  65  Fed.  v.  Willis,  24  Misc.    (N.  Y.)    537,  54 

62.  N.  Y.  S.  129. 

"United  States  v.  Hirsch,  100  U.  **"  State  v  Mayberry.   48  Me.  218; 

S_  33.  People  v.  Arnold,  46  Mich.  268,  9  N. 

«'Elsey  V.  State,  47  Ark.  572;  Com-  W.  406;   People  v.  Mather,  4  Wend., 

mon wealth    v.    Blackburn,    1    Duv.  (N.  Y.)    229;    Orr  v.  People,  63  IlL 

(Ky.)   4;   State  v.  Mayberry,  48  Me.  App.  305. 


211  LABOR  COMBINATIONS.        [§§'  2949,  2950. 

class  holds  that  if  the  proof  shows  the  conspiracy  itself  is  of  a  highci: 
grade  than  the  crime  actually  committed  then  there  is  no  merger.®^ 

§  2949.  Labor  combinations — When  criminal. — In  recent  years 
much  discussion  and  litigation  have  arisen  on  the  proposition  of  the 
criminality  of  lahor  combinations.  It  is  generally  conceded  by  law 
writers  and  courts  that  it  is  both  lawful  and  commendable  for  men 
to  associate  themselves  together  for  the  purpose  of  bettering  their 
condition  as  laborers  or  in  a  financial  or  social  way.  It  has  been 
stated  that  it  is  the  genius  of  our  free  institutions  that  invites  the 
citizens  of  the  country  to  higher  levels  and  better  fortunes.  The 
right  is  conceded  to  organize  labor,  to  dictate  in  a  way  the  wages  for 
its  members,  and  that  its  members  may  select  their  own  associates, 
choose  their  own  employers,  and  do  whatever  may  be  lawful  or  proper 
to  advance  their  interests  and  accomplish  their  purposes.  But  on  the 
other  hand,  the  law,  as  stated  by  writers  and  recognized  by  courts 
is  "that  all  conspiracies  whatever  wrongfully  to  prejudice  a  third 
person  are  wholly  criminal  at  common  law."^^  The  rule  is  thus 
stated  by  another  eminent  writer  on  criminal  law:  "A  combination 
is  a  conspiracy  in  law  whenever  the  act  to  be  done  has  a  necessary 
tendency  to  prejudice  the  public,  or  oppresses  individuals,  by  unjustly 
subjecting  them  to  the  power  of  the  confederates  and  giving  effect  t^ 
the  purposes  of  the  latter,  whether  of  extortion  or  mischief."^'' 

§  2950.  Labor  combinations — Vermont  rule, — The  Supreme  Court 
of  Vermont,  after  a  review  of  the  English  and  American  cases,  prac- 
tically forecloses  the  entire  question  in  the  following  language :  "The 
principle  upon  which  the  cases,  English  and  American,  proceed  is, 
that  every  man  has  the  right  to  employ  his  talents,  industry  and 
capital  as  he  pleases,  free  from  the  dictation  of  others ;  and  if  two 
or  more  persons  combine  to  coerce  his  choice  in  his  behalf,  it  is  a 
criminal  conspiracy.  The  labor  and  skill  of  the  workman,  be  it  of 
high  or  low  degree,  the  plant  of  the  manufacturer,  the  equipment  of 
the  farmer,  the  investments  of  commerce,  are  all  in  equal  sense  prop- 
erty.    If  men  by  overt  acts  of  violence  destroy  either,  they  are  guilty 

"  Commonwealth  v.  Blackburn,  62  ^^  2  Russell  Crimes  674. 

Ky.  4;  State  v.  Murray,  15  Me.  100;  ''2  Wharton  Cr.  Law,   §  2322;    2 

People    v.    Richards,    1    Mich.    217;  Bishop  Cr.   Law,   §   172;    Desty  Cr. 

People  V.   Petheram,   64   Mich.   252,  Law,  §  11;   3  Chitty  Cr.  Law  1138; 

31  N.  W.  188;  State  v.  Noyes,  25  Vt.  Archibald  Cr.  Pr.  &  PI.  1830. 
415. 


§    2951.]  CONSPIRACY.  212 

of  crime.  The  anathemas  of  a  secret  organization  of  men  combined 
for  the  purpose  of  controlling  the  industry  of  others  by  a  species  of  in- 
timidation that  works  upon  the  mind  rather  than  the  body,  are  quite  as 
dangerous,  and  generally  altogether  more  effective,  than  acts  of  actual 
violence.  And  while  such  conspiracies  may  give  to  the  individual 
directly  affected  by  them  a  private  right  of  action  for  damages, 
they  at  the  same  time  lay  a  basis  for  an  indictment  on  the  grounds 
that  the  state  itself  is  directly  concerned  in  the  promotion  of  all 
legitimate  industries  and  the  development  of  all  its  resources,  and 
owes  the  duty  of  protection  to  its  citizens  engaged  in  the  exercise  of 
their  callings.  The  good  order,  peace  and  general  prosperity  of  the 
state  are  directly  involved  in  the  question.  .  .  .  The  exposure  of  a 
legitimate  business  to  the  control  of  an  association  that  can  order 
away  its  employes  and  frighten  away  others  that  it  may  seek  to 
employ,  and  thus  be  compelled  to  cease  the  further  prosecution  of 
its  work,  is  a  condition  of  things  utterly  at  war  with  every  principle 
of  justice,  and  with  every  safeguard  of  protection  that  citizens  under 
our  system  of  government  are  entitled  to  enjoy.  The  direct  tendency 
of  such  intimidations  is  to  establish  over  labor  and  over  all  industries, 
a  control  that  is  unknown  to  the  law,  and  that  is  exerted  by  a  secret 
association  of  conspirators,  that  is  actuated  solely  by  personal  consid- 
eration, and  whose  plans,  carried  into  execution,  usually  result  in 
violence  and  the  destruction  of  property."^"  Substantially  the  same 
rule,  stated  by  an  English  court,  and  adopted  by  the  courts  of  many 
jurisdictions,  is  as  follows:  "The  whole  law  of  conspiracy,  as  it  has 
been  administered  at  least  for  the  last  hundred  years,  has  been  thus 
called  in  question ;  for  we  have  sufficient  proof  that  during  that  period 
any  combination  to  prejudice  another  unlawfully  has  been  considered 
as  constituting  the  offense  so  called.  The  offense  has  been  held  to  con- 
sist in  the  conspiracy,  and  not  in  the  acts  committed  for  carrying  it 
into  effect;  and  the  charge  has  been  lield  to  be  sufficiently  made  in 
general  terms  describing  an  unlawful  conspiracy  to  effect  a  bad  pur- 
pose."®^ 

§  2951.     Labor    combinations — Strikes,    boycott    and    picketing. 

The  law  recognizes  that  labor  organizations  become  unlawful  wlien 
their  members  unite  or  combine  to  accomplish  an  unlawful  purpose, 
or  when  they  by  combination  attempt  to  accomplish  a  lawful  purpose 

~  State  V.   Stewart,  59  Vt.   273,  9         «^  State  v.   Stewart,  59  Vt.  273,  9 
Atl.  559.  Atl.  559. 


213 


LABOR    COMBIXATIOXS 


[§  2951: 


by  unlawful  means.  When  the  proof  shows  that  the  object  or  pur- 
pose is  to  be  accomplished  in  either  of  these  ways  according  to  the 
rules  of  law  the  combination  becomes  a  criminal  conspiracy.  The 
adjudicated  cases  show  that  relief  may  be  had  by  a  civil  action  for 
damages,  by  injunction,  or  by  criminal  prosecution.  It  is  not  within 
the  scope  of  this  chapter  to  give  the  rules  governing  the  introduction 
of  evidence,  or  the  sutTiciency  of  the  proof  in  establishing  either  the 
civil  liability  or  the  criminal  offenses  growing  out  of  strikes,  boycotts 
and  picketings.  It  will  be  considered  sufficient  to  refer  to  the  cases 
generally  involving  civil  actions  for  damages,  injunctive  relief  and 
criminal  prosecutions. °- 


»=  Santa  Clara  &c.  Co.  v.  Hayes,  76 
Cal.  387,  18  Pac.  391;  Vulcan  &c. 
Co.  V.  Hercules  &c.  Co.,  96  Cal.  510, 
31  Pac.  581;  State  v.  Glidden,  55 
Conn.  46,  8  Atl.  890;  Smith  v.  Peo- 
ple, 25  111.  17;  People  v.  Chicago 
Gas  &c.  Co.,  130  111.  268,  22  N.  E. 
798;  More  v.  Bennett,  140  111.  69,  29 
N.  B.  888;  Distilling  &c.  Co.  v.  Peo- 
ple, 156  111.  448,  41  N.  E.  188;  Dore- 
mus  V.  Hennessy,  176  111.  608,  52  N. 
E.  924,  54  N.  E.  524;  London  Guar- 
antee &c.  Co.  V.  Horn,  206  111.  493, 
69  N.  E.  526;  Bruschke  v.  Furniture 
Makers'  Union,  18  Chicago  Leg. 
News  306;  Jackson  v.  Stanfleld,  137 
Ind.  592,  36  N.  E.  345,  37  N.  E.  14; 
Clemmitt  v.  Watson,  14  Ind.  App.  38, 
42  N.  E.  367;  Schulten  v.  Bavarian 
Brew.  Co.,  96  Ky.  224,  28  S.  W.  504; 
Brewster  v.  Miller,  101  Ky.  368,  41 
S.  W.  301;  Heywood  v.  Tillson,  75 
Me.  225;  Perkins  v.  Pendleton,  90 
Me.  166;  Kimball  v.  Harman,  34  Md. 
407;  Lucke  v.  Clothing  Cutters"  &c., 
77  Md.  396,  26  Atl.  505;  Common- 
wealth v.  Hunt,  4  Mete.  (Mass.)  Ill; 
Bowen  v.  Matheson,  14  Allen 
(Mass.)  499;  Carew  v.  Rutherford. 
106  Mass.  1;  Walker  v.  Cronin,  107 
Mass.  555;  Snow  v.  Wheeler,  113 
INIass.  179;  Sherry  v.  Perkins,  147 
Mass.  212,  17  N.  E.  307;  Vegelahn 
V.  Guntner,  167  Mass.  92,  44  N.  E. 


1077;  Hartnett  v.  Plumbers'  Supply 
Asso.,  169  Mass.  229,  47  N.  E.  1002; 
Plant  V.  Woods,  176  Mass.  492,  57 
N.  E.  1011;  People  v.  Petheram,  64 
Mich.  252,  31  N.  W.  188;  Richardson 
V.  Buhl,  77  Mich.  632,  43  N.  W.  1102; 
Lovejoy  v.  Michels,  88  Mich.  15,  49 
N.  W.  901;  Beck  v.  Teamsters'  &c. 
Union,  118  Mich.  497,  77  N.  W.  13; 
United  States  &c.  Co.  v.  Iron  Mold- 
ers'  Union,  129  Mich.  354,  88  N.  W. 
889;  Bohn  Mfg.  Co.  v.  Hollis,  54 
Minn.  223,  55  N.  W.  1119;  Ertz  v. 
Produce  Exchange,  79  Minn.  140,  81 
N.  W.  737;  Ertz  v.  Produce  Ex- 
change. 82  Minn.  173,  84  N.  W.  743; 
American  &c.  Ins.  Co.  v.  State,  75 
Miss.  24,  22  So.  99;  Hamilton-Brown 
&c.  Co.  V.  Saxey,  131  Mo.  212,  32  S. 
W.  1106;  Walsh  v.  Association  Mas- 
ter Plumbers,  97  Mo.  App.  280,  71 
S.  W.  455;  Mapstrick  v.  Ramge,  9 
Neb.  390,  2  N.  W.  739;  McCartney 
V.  Berlin,  31  Neb.  411,  47  N.  W.  1111; 
State  V.  Burnham,  15  N.  H.  396; 
State  V.  Norton,  23  N.  J.  L.  44;  State 
V.  Donaldson,  32  N.  J.  L.  151;  Van 
Horn  V.  Van  Horn,  52  N.  J.  L.  284. 
20  Atl.  485;  Mayer  v.  Journeymen 
&c.  Asso.,  47  N.  J.  Eq.  519,  20  Atl. 
492;  Barr  v.  Essex  &c.  Council,  53 
N.  J.  Eq.  101,  30  Atl.  881;  Cumber- 
land &c.  Co.  V.  Glass  Bottle  &c.  Asso., 
59  N.  J.  Eq.  49,  46  Atl.  208;   Frank 


2951.] 


CONSPIRACY. 


214 


V.  Herold,  63  N.  J.  Eq.  443,  52  Atl. 
152;  Delaware  &c.  R.  Co.  v.  Bowns, 
58  N.  Y.  573;  Buffalo  &c.  Oil  Co.  v. 
Standard  Oil  Co.,  106  N.  Y.  669,  12 
N.  E.  826;  Leonard  v.  Poole,  114  N. 
Y.  371,  21  N.  E.  707;  People  v.  Bar- 
ondess,  133  N.  Y.  649,  31  N.  E.  240; 
People  V.  Sheldon,  139  N.  Y.  251,  34 
N.  E.  785;  Reynolds  v.  Everett,  144 
N.  Y.  189,  39  N.  E.  72;  People  v. 
Milk  Exchange,  145  N.  Y.  267,  39  N. 
E.  1062;  Curran  v.  Galen,  152  N.  Y. 
33,  46  N.  E.  297;  Davis  v.  Zimmer- 
man, 91  Hun  (N.  Y.)  489,  36  N.  Y. 
S.  303;  Master  &c.  Asso.  v.  Walsh,  2 
Daly   (N.  Y.)   1;   Gilbert  v.  Mickle, 

4  Sandf.  Ch.  (N.  Y.)  357;  People  v. 
Fisher,  14  Wend.  (N.  Y.)  9;  Jones 
V.  Westervelt,  7  Cow.  (N.  Y.)  445; 
Johnston  Co.  v.  Meinhardt,  60  How. 
Pr.  (N.  Y.)  168;  Coons  v.  Chrystie, 
24  Misc.  (N.  Y.)  296,  53  N.  Y.  S. 
668;  Reformes  Club  &c.  v.  Laborers' 
&c.  Soc,  29  Misc.  (N.  Y.)  247,  60  N. 
Y.  S.  388;  Rogers  v.  Eberts,  17  N. 
Y.  S.  264;  People  v.  Smith,  10  N. 
Y.  St.  730;  People  v.  Walsh,  15  N. 
Y.  St.  17;  People  v.  Wilzig,  4  N.  Y. 
Cr.  403;  People  v.  Kostka,  4  N.  Y. 
Cr.  429;  Emery  v.  Ohio  Candle  Co., 
47  Ohio  St.  320,  24  N.  E.  660;  Moores 
V.  Bricklayers'  Union,  23  Cin.  L. 
Bui.  48,  10  Ohio  Dec.  (Reprint) 
665;  Dayton  Mfg.  Co.  v.  Metal  Pol- 
ishers' &c.  Union,  8  Ohio  N.  P.  574; 
Richter  v.  Journeymen  Tailors' 
Union,  24  Cin.  L.  Bui.  189;  Perkins 
V.  Rogg,  28  Cin.  L.  Bui.  32,  11  Ohio 
Dec.  (Reprint)  585;  New  York  &c. 
R.  Co.  v.  Wenger,  17  Cin.  L.  Bui. 
306;  Longshore  &c.  Co.  v.  Howell,  26 
Ore.  527,  38  Pac.  547;  Morris  Run 
Coal  Co.  V.  Barclay  Coal  Co.,  68  Pa. 
St.  173;  Newman  v.  Commonwealth, 

5  Cent.  Rep.  497;  Brace  v.  Evans, 
3  Ry.  &  Corp.  L.  J.  561;  Cook  v.  Do- 
lan,  19  Pa.  Co.  Ct.  401;  Wildee  v. 
McKee,  111  Pa.  St.  335,  2  Atl.  108; 
Murdock  v.  Walker,  152  Pa.  St.  595, 


25  Atl.  492;  Cote  v.  Murphy,  159  Pa. 
St.  420,  28  Atl.  190;  Buchanan  v. 
Kerr,  159  Pa.  St.  433,  28  Atl.  195; 
Wick  China  Co.  v.  Brown,  164  Pa.  St. 
449,  30  Atl.  261;  Macauley  v.  Tier- 
ney,  19  R.  I.  255,  33  Atl.  1;  Manufac- 
turers' &c.  Co.  v.  Longley,  20  R.  I.  86, 
37  Atl.  535;  Payne  v.  Western  &c.  R. 
Co.,  13  Lea  (Tenn.)  507;  Delz  v. 
Winfree,  80  Tex.  400,  16  S.  W.  Ill; 
Texas  &c.  Co.  v.  Adoue,  83  Tex.  650, 
19  S.  W.  274;  People  v.  O'Loughlin, 
3  Utah  133,  1  Pac.  653;  State  v. 
Stewart,  59  Vt.  273,  9  Atl.  559;  State 
V.  Dyer,  67  Vt.  690,  32  Atl.  814; 
Boutwell  V.  Marr,  71  Vt.  1,  42  Atl. 
607,  43  L.  R.  A.  803;  Crump  v.  Com- 
monwealth, 84  Va.  927,  6  S.  E.  620; 
Murray  v.  McGarigle,  69  Wis.  483, 
34  N.  W.  522;  Martens  v.  Reilly,  109 
Wis.  464,  84  N.  W.  840;  State  v. 
Huegin,  110  Wis.  189,  85  N.  W.  1046; 
Callan  v.  Wilson,  127  U.  S.  540.  8 
Sup.  Ct.  1301;  Debs,  In  re,  158  U. 
S.  564, 15  Sup.  Ct.  900;  United  States 
V.  Trans-Missouri  &c.  Asso.,  166  U. 
S.  290,  17  Sup.  Ct.  540;  United  States 
V.  Kane,  23  Fed.  748;  Wabash  R. 
Co.,  In  re,  24  Fed.  217;  Old  Domin- 
ion &c.  Co.  V.  McKenna,  24  Blatch. 
(U.  S.)  244,  30  Fed.  48;  Emac  y. 
Kane,  34  Fed.  47;  Casey  v.  Typo- 
graphical Union,  45  Fed.  135;  Coeur 
d'Alene  &c.  Co.  v.  Miners'  Union,  51 
Fed.  260;  Toledo  &c.  R.  Co.  v.  Penn- 
sylvania Co.,  54  Fed.  730;  United 
States  v.  Workingmen's  &c.  Council, 

54  Fed.  994;   Waterhouse  v.  Comer, 

55  Fed.  149;  United  States  v.  Pat- 
terson, 55  Fed.  605;  Farmers'  Loan 
&c.  Co.  V.  Northern  Pac.  R.  Co.,  60 
Fed.  803;  Lake  Erie  &c.  R.  Co.  v. 
Bailey,  61  Fed.  494;  Southern  &e. 
R.  Co.  V.  Rutherford,  62  Fed.  796; 
Thomas  v.  Cincinnati  &c.  R.  Co.,  62 
Fed.  803;  Arthur  v.  Oakes,  11  C.  C. 
A.  209,  63  Fed.  310,  25  L.  R.  A.  414; 
United  States  v.  Elliott,  64  Fed.  27; 
Dueber  &c.  Co.  v.  Howard  &c.  Co., 


Hlo 


LABOR    COMBIXATIOXS. 


[§  2951. 


66  Fed.  637;  Continental  Ins.  Co.  v. 
Board  &c..  67  Fed.  310;  Oxley  Stave 
Co.  V.  Coopers'  &c.  Union,  72  Fed. 
695;  Consolidated  Steel  &c.  Co.  v. 
Murray,  80  Fed.  811;  Hopkins  v. 
Oxley  Stave  Co.,  83  Fed.  912;  United 
States  V.  Weber,  114  Fed.  950;  Reg. 
V.  Rowlands,  17  Ad.  &  E.  67;  Reg.  v. 
Harris,  1  Car.  &  M.  661;  Reg.  v. 
Selsby,  5  Cox  Cr.  Cas.  495,  note; 
Wood  V.  Barrow,  10  Cox  Cr.  Cas. 
344;  Reg.  v.  Druitt,  10  Cox  Cr.  Cas. 
592;  Reg.  v.  Shepherd.  11  Cox  Cr. 
Cas.  325;  Reg.  v.  Bunn,  12  Cox  Cr. 
Cas.   316;    Reg.   v.   Hibbert,   13   Cox 


Cr.  Cas.  82;  Reg.  v.  Bauld,  13  Cox 
Cr.  Cas.  282;  Rex  v.  Mawbey,  6 
Term  R.  619;  Hilton  v.  Eckersley, 
6  E.  &  B.  47;  Walsby  v.  Anley,  3 
E.  &  E.  516;  Rex  v.  Eccles.  3  Doug. 
337;  Greggory  v.  Duke  of  Bruns- 
wick, 6  M.  &  G.  205;  Tarlton  v.  Mc- 
Gawley.  Peak  N.  P.  205 ;  Rex  v.  Fer- 
guson, 2  Stark.  431;  Reg.  v.  Aspi- 
nall.  L.  R.  2  Q.  B.  48;  Mogul  &c. 
Co.  V.  McGregor,  L.  R.  21  Q.  B.  544; 
Allen  V.  Flood,  L.  R.  23  App.  Cas.  1; 
Springhead  &c.  Co.  v.  Riley,  L.  R. 
6  Eq.  Cas.  551. 


CHAPTER  CXL. 


COUXTERFEITING. 


Sec. 

2952.  Generally. 

2953.  What    must    be    proved — Bur- 

den— Presumptions. 

2954.  Knowledge — Intent  —  Similar 

offenses. 

2955.  Possession  by  accused. 

2956.  Existence  of  bank. 


Sec. 

2957.  Admissions. 

2958.  Accomplices. 

2959.  Expert  evidence. 

2960.  Production    of    counterfeit   at 

trial. 

2961.  Defenses. 


§  2952.  Generally. — Counterfeiting  coin  is  the  making  of  false  or 
spurious  coin  to  imitate,  or  in  the  similitude  of,  the  genuine  coin.^ 
Counterfeiting  the  coin  of  the  realm  was  a  crime  at  common  law,  and 
so,  it  seems,  was  the  passing  of  such  counterfeit  coin  or  the  having  it 
in  possession  with  intent  to  pass  it  as  the  true  coin.  The  possession  of 
instruments  for  counterfeiting  coin  was  also  a  crime.  Passing  a 
false  note  purporting  to  be  that  of  a  bank  having  no  existence,  or  the 
like,  was  also  punishable  as  a  form  of  cheating.  Under  the  laws  of 
the  United  States  and  of  the  various  states,  the  offense  of  counter- 
feiting has  been  much  extended,  and  it  includes  the  counterfeiting 
of  other  money  as  well  as  coin,  and  of  various  other  securities,  evi- 
dence of  indebtedness  and  the  like.  The  crime  of  counterfeiting  is 
distinguished  from  forgery  in  that  in  the  former  there  must  be  a 
similitude  or  resemblance  to  the  coin  or  instrument  counterfeited, 
while  in  the  latter  no  such  resemblance  is  required.-  The  similitude, 
it  is  said,  must  be  such  as  would  deceive  a  person  exercising  ordinary 
caution,^  but  whether  it  is  such  in  the  particular  case  is  generally  a 


1  Bishop  New  Cr.  Law,  §  289;  see 
also,  United  States  v.  Abram,  18 
Fed.  823.  "Counterfeiting  is  a 
species  of  forgery.  The  term  is 
usually  applied  to  the  making  and 
uttering  false  money  or  forging 
bank  notes  which  are  the  equivalent 
of  money."  People  v.  Molineux,  62 
L.  R.  A,  257.  note. 


^  May  Cr.  Law,  §  94;  see  also,  Hale 
V.  State,  120  Ga.  183,  47  S.  E.  531. 

^  United  States  v.  Hopkins,  26  Fed. 
443;  United  States  v.  Morrow,  i 
Wash.  (U.  S.)  733;  United  States  v. 
Kuhl,  85  Fed.  624:  State  v.  Carr,  5 
N.  H.  367;  Dement  v.  State,  2  Head 
(Tenn.)  505,  75  Am.  Dec.  747;  Reg. 
V.  Byrne,  6  Cox  Cr.  Cas.  475;  Rex 
V.  Walsh,  1  East  P.  C.  87. 


216 


217  WHAT   MUST   BE   PROVED.  [§    2953. 

question  for  the  jury.*  An  essential  element  of  the  offense  is  the 
fraudulent  intent,  or  intent  to  deceive.^  Counterfeiting  may  he  a 
crime  under  the  state  statute  as  well  as  under  the  act  of  Congress, 
and  the  fact  tliat  it  is  a  crime  under  the  laws  of  the  United  States 
does  not  deprive  the  state  courts  of  jurisdiction  in  so  far  as  the  act 
is  a  crime  under  the  state  law.® 

§  2953.  What  must  be  proved — Burden — Presumption. — It  is  evi- 
dent that  what  must  be  proved  depends  largely  upon  the  particular 
offense  charged  and  the  particular  statute  upon  which  the  prosecution 
is  based.  All  the  c&sential  elements  of  the  offense  charged,  or,  in 
other  words,  all  the  facts  necessary  to  constitute  that  offense  must  be 
proved.'^  Thus  it  has  been  held  necessary  in  particular  cases  to 
prove  guilty  knowledge,^  circulation  of  the  money  counterfeited,^  and 
the  existence  of  a  genuine  bank-bill  such  as  is  charged  to  have  been 
counterfeited.^**  So,  it  has  been  held  that  intent  to  defraud  a  particu- 
lar person  must  be  proved  when  alleged.^^  And,  as  already  stated, 
the  similitude  or  resemblance  to  the  genuine  must  generally  be  made 
to  appear.  But  it  has  been  held  that  it  is  not  necessary  to  prove  that 
the  notes  described  in  the  indictment  and  those  given  in  evidence  are 
the  same,^^  or  that  such  genuine  coin  of  the  same  country  exists  as 
the  counterfeit  purports  to  be  in  imitation  of,  as  the  courts  will  take 

*  United  States  V.  Hopkins,  26  Fed.  'Brown    v.    People,    9     111.     439; 

443;    United    States   v.    Stevens,    52  United  States  v.  Fitzgerald,  91  Fed. 

Fed.  120.  374. 

"  United  States  v.  King.  5  McLean  *  Wash     v.      Commonwealth,      16 

(U.  S.)  208,  26  Fed.  Cas.  No.  15535;  Gratt.    (Va.)    530;    State  v.  Morton, 

Mattison  v.  State,  3  Mo.  421;  People  8   Wis.  352;    United   States  v.   Rou- 

v.  Molins,  7  N.  Y.  Cr.  51,  10  N.  Y.  denbiish,  Baldw.  (U.  S.)  514. 

S.  130;  People  V.  Page,  1  Idaho  189.  'State     v.     Shelton,     7     Humph. 

191;    People  v.  White,  34  Cal.  183;  (Tenn.)   31. 

Gabe  v.  State,  6  Ark.  540;   but  see,  "State  v.  Brown,  4  R.  I.  528,  70 

United    States   v.    Russell,    22    Fed.  Am.  Dec.  168. 

390.  ''Wilkinson  v.  State,  10  Ind.  546; 

« People  V.  McDonnell,  80  Cal.  285,  but    see,    Sasser   v.    State,    13    Ohio 

22  Pac.  190,  13  Am.  St.   159;    Com-  453;  United  States  v.  Moses,  4  Wash, 

monwealth     v.      Fuller,      8      Mete.  (U.   S.)    725,  27   Fed.  Cas.   No.   15,- 

(Mass.)    313;    Dashing  v.   State,  78  825;  United  States  v.  Kuhl,  85  Fed. 

Ind.    357;    United    States    v.    Cruik-  624. 

shank,  92  U.  S.  542;  Prigg  v.  Penn-  '==  United  States  v.  Moses,  4  Wash, 

sylvania,  16  Pet.  (U.S.)  625;  United  (U.    S.)    726,   27   Fed.   Cas.   No.   15,- 

States   V.   Ar.lona,   120  U.   S.   479,   7  825. 
Sup.  Ct.  628. 


§  2954.]  couxtekfp:itixg.  218 

judicial  notice  of  the  coins  of  their  own  country  ;^^  and  the  ingre- 
dients of  counterfeiting  coin  need  not  be  proved,  even  though  alleged.^* 
It  has  been  said  that  in  prosecutions  for  counterfeiting  there  can 
be  no  presumption  of  guilty  knowledge  as  a  matter  of  law,  but  from 
the  existence  of  facts  there  may  be  presumptions  of  fact.^^  Thus,  the 
making  of  the  conterfeit  being  proved,  the  intent  to  use  it  for  an  un- 
lawful purpose  may  and  generally  will  be  inferred  or  be  presumed  ;^^ 
^nd  the  act  of  knowingly  passing  a  counterfeit  being  proved,  the  con- 
clusion of  intent  to  defraud  necessarily  follows,^^  or  will,  ordinarily 
at  least,  be  presumed.^*  So,  in  a  prosecution  for  counterfeiting  bank- 
notes or  coins,  evidence  that  the  notes  mentioned  in  the  indictment, 
and  others  of  like  kind,  together  with  plates  and  implements  for  mak- 
ing them,  were  found  in  the  possession  of  defendant,  has  been  held  to 
constitute  prima  facie  evidence  that  the  defendant  was  the  counter- 
feiter. ^^ 

§  2954.  Knowledge  —  Intent  —  Similar  offenses.  —  As  already 
stated,  there  must  be  a  criminal  intent,  and  knowledge  must  also  be 
shown,  especially  where  the  indictment  is  for  uttering,  passing,  or 
having  in  possession  a  counterfeit  with  intent  to  pass  it.  But  these 
elements  may  be  infered  from  circumstances  in  evidence,  and  direct 
evidence  is  not  essential.^"  Evidence  that  the  defendant  was  in  com- 
pany with  another  person  a  number  of  times  when  the  latter  passed 
counterfeit  bills,- ^   and  evidence  that  the   accused  and  some  third 

"United   States   v.   Burns,   5    Mc-  v.  King,  5  McLean   (U.  S.)   208,  26 

Lean  (U.  S.)  23,  24  Fed.  Cas.  No.  14,-  Fed.  Cas.  No.  15535. 
691;    United   States  v.  King,  5   Mc-        ""State  v.  Smith,  5  Day   (Conn.) 

Lean    (U.  S.)   208,  26  Fed.  Cas.  No.  176,  5  Am.  Dec.  132;  State  v.  Brown, 

15535;    see    also,    United    States    v.  4  R.  L  528,  70  Am.  Dec.  168;   Rex 

Williams,  4  Biss.  (U.  S.)   302.  v.    Fuller,   Russ.   &   Ry.   C.    C.   308; 

"State  V.  Beeler,  1  Brev.  (S.  Car.)  People  v.   Page,   1    Idaho   189;    Mc- 

482;   State  v.  Griffin,  18  Vt.  198.  Gregor  v.  State,  16  Ind.  9;   State  v. 

'^  Wash     v.     Commonwealth,      16  McPherson,    9    Iowa    53.      Evidence 

Gratt.  (Va.)  530.  that   the    defendant   has    been    em- 

^^  State  V.  McPherson,  9  Iowa  53.  ployed    in    printing    genuine    bank 

•^^  People  V.  Page,  1  Idaho  189,  190.  bills   of   the   kind   in   question    has 

"  United      States      v.      Shellmire,  been     held     admissible.       Common- 

Baldw.  (U.  S.)  370,  27  Fed.  Cas.  wealth  v.  Hall,  4  Allen  (Mass.)  305. 
No.  16271.  "State  v.  Spalding,  19  Conn.  233; 

"  Spencer     v.     Commonwealth,     2  see  also,  Finn  v.  Commonwealth,  5 

Leigh    (Va.)    751;   United  States  v.  Rand.    (Va.)    701;   United  States  v. 

Burns,    5    McLean    (U.    S.)     23,    24  Taranto,  74  Fed.  219. 
Fed.  Cas.  No.  14691;   United  States 


219 


POSSESSION    BY    ACCUSED. 


[§  2955. 


person  had  conspired  to  pass  counterfeit  money,  or  that  a  counterfeit 
had  been  passed  by  some  person  resembling  the  defendant,"  or  that 
the  defendant  had  about  the  same  time  knowingly  uttered  other 
counterfeits,"  even  though  he  may  have  been  indicted  or  even  tried 
another  time  for  passing  such  other  counterfeit,-*  is  admissible  to 
show  knowledge  or  criminal  intent.  And  the  defendant's  declarations 
w^hen  passing  other  counterfeit  money  may  be  proved  against  him  for 
the  same  purpose."  So,  possession  of  other  similar  counterfeit  money 
has  been  held  admissible  to  show  knowledge,^^  and  it  has  likewise  been 
held  that  the  possession  of  instruments  for  making  the  counterfeit 
may  be  shown  for  the  same  purpose,  under  a  charge  of  counterfeit- 
ing.^^ 

§2955.  Possession  by  accused.— As  stated  in  the  preceding  sec- 
tion, the  possession  by  the  defendant  of  the  tools  and  instruments^'' 
for  coining  and  counterfeiting  the  money,  or  of  spurious  coin,-»  may 


"  People  V.  Clarkson,  56  Mich.  164, 
22  N.  W.  258. 

"People  V.  Frank,  28  Cal.  507; 
State  V.  Twitty,  2  Hawks  (N.  Car.) 
248;  Langford  v.  State,  33  Fla.  233, 
14  So.  815;  State  v.  Cole,  19  Wis. 
129,  134;  Commonwealth  v.  Stearns, 
10  Mete.  (Mass.)  256;  Common- 
wealth V.  Bigelow,  8  Mete.  (Mass.) 
235,  236;  Hendrick's  Case,  5  Leigh 
(Va.)  707;  Steele  v.  People,  45  111. 
152;  State  v.  Tindal,  5  Harr.  (Del.) 
488,  490;  United  States  v.  Noble, 
5  Cranch   (U.  S.)   371. 

=*  McCartney  v.  State,  3  Ind.  353; 
Commonwealth  v.  Stearns,  10  Mete. 
(Mass.)    256. 

2=  State  V.  Smith,  5  Day  (Conn.) 
175.  5  Am.  Dec.  132;  Commonwealth 
V.  eCdgerly,  10  Allen  (Mass.)   184. 

-» United  States  v.  Noble,  5  Cranch 
{{].  S.)  371;  United  States  v.  Hin- 
man,  Baldw.  (U.  S.)  292;  People 
V.  Molins.  7  N.  Y.  Cr.  51,  10  N.  Y. 
S.  130;  State  v.  "Williams,  2  Rich. 
L.  (S.  Car.)  418,  45  Am.  Dec.  741; 
Commonwealth  v.  Price,  10  Gr,iy 
(Mass.)  472,  71  Am.  Dec.  668;  Hess 


V.  State,  5  Ohio  5,  22  Am.  Dec.  767; 
but  see.  Bluff  v.  State,  10  Ohio  St. 
547. 

=' State  V.  Antonio,  3  Brev.  (S. 
Car.)  562;  an  abstract  or  synopsis 
of  this  case  and  of  many  others  up- 
on the  subject  of  this  section  is 
given  in  an  elaborate  note  in,  62 
L.  R.  A.  257-264. 

="  State  v.  Antonio,  3  Brev.  (S. 
Car.)  562;  Hess  v.  State,  5  Ohio  5, 
22  Am.  Dec.  767.  But  possession 
should  not  be  too  remote.  State  v. 
Odel,  3  Brev.   (S.  Car.)  552. 

=«  Stalker  v.  State,  9  Conn.  341, 
343;  United  States  v.  Hinman, 
Baldw.  (U.  S.)  292;  People  v. 
Thoms,  3  Park.  Cr.  Cas.  (N.  Y.) 
256,  262.  270,  3  Abb.  App.  571;  State 
V.  Twitty,  2  Hawks  (N.  Car.)  248; 
State  V.  Bridgman,  49  Vt.  202,  210; 
People  V.  White,  34  Cal.  183.  It  has 
been  said  that  the  counterfeit 
money  found  must  be  similar  in 
kind  to  that  for  which  he  is  on  trial 
for  uttering.  Bluff  v.  State.  10  Ohio 
St.  547. 


§    2956.]  COUNTEKFEITIXG.  220 

generally  be  shown,  and  it  is  said  that  such  possession,  "even  subse- 
quent to  the  act  for  which  he  is  indicted,^"  may  always  be  proved  for 
the  purpose  of  showing  guilty  and  criminal  intent.^^  But  the  ac- 
cused must  be  allowed  to  explain  his  possession,  in  order  to  rebut  any 
presumption  that  may  arise  against  him/'^-  And  it  has  been  held 
that  the  fact  that  counterfeiters'  tools  were  found  in  the  possession 
of  the  wife  of  the  accused  is  not  admissible  where  he  exercised  no 
control  over  them.^^  In  many  jurisdictions,  as  already  stated,  the 
possession  of  such  tools  and  appliances,  at  least  with  criminal  intent, 
is  itself  a  crime,^*  and  under  some  of  the  statutes  it  seems  that  it  is 
sufficient  to  constitute  the  offense  if  the  defendant  knowingly  has 
them  in  his  possession  and  secretly  keeps  them,  regardless  of  his  actual 
intent.^^ 

§  2956.  Existence  of  bank. — It  is  sometimes  necessary  to  prove 
the  existence  of  a  bank  whose  notes  are  alleged  to  have  been  coun- 
terfeited. This  ma}^  of  course,  be  done  by  its  articles  of  incorpora- 
tion, or  a  duly  authenticated  copy  made  evidence  of  corporate  exist- 
ence by  the  law.^"'  But  this  is  not  absolutely  necessary  unless  the 
statute  so  requires.  It  may  be  shown  by  evidence  of  a  general  char- 
acter, as  that  it  was  known  and  acted  as  such  bank  and  issued  genuine 
bills  of  the  kind  in  question."     So  the  fact  that  a  certain  person, 

^Commonwealth     v.      Price,      10  wealth  v.  Bigelow,  8  Mete.   (Mass.) 

Gray  (Mass.)  472,  71  Am.  Dec.  668;  235. 

Reg.  V.  Forster,  6  Cox  Cr.  Cas.  521;  ^=Underhill  Cr.  Ev.,  §  433;  United 

Bottomley  v.  United  States,  1  Story  States  v.  Burns,  5  McLean   (U.  S.) 

(U.  S.)   136.  23,  24  Fed.  Cas.  No.  14,691;   United 

^'"The  object  of  the  testimony  is  States  v.  King,  5   McLean   (U.   S.) 

not  to  convict  or  accuse  him  of  oth-  208,  26  Fed.  Cas.  No.  15535;  United 

er  crimes,  but  to  establish  the  fact  States   v.    Craig,   4   Wash.    (U.    S.) 

of  such  a  knowledge,  on  his  part,  of  729. 

the  true  character  of  the  bill  uttered  ^'  People    v.    Thoms,    3    Park.    Cr. 

by  him,  and  which  is  proved  to  be  Cas.    (N.  Y.)    256,  3  Abb.  App.    (N. 

counterfeit,  as  will  justify  the  jury  Y.)    571;    but  see,   Reg.   v.   Parker, 

in   inferring  his   guilt.     So   far  as  2  Cox  Cr.  Cas.  274. 

this    may    be    deemed    a    departure  =*  People   v.    White,    34    Cal.    183; 

from  the  technical  rules  of  evidence.  Commonwealth    v.    Morse,    2    Mass. 

it    is   a    departure   justified    by    the  138. 

peculiar  nature  of  the  crime  of  pass-  ■''^  Sasser   v.    State,    13    Ohio    453; 

ing  counterfeit  money,  which   con-  Sutton  v.  State,  9  Ohio  133. 

sists    not    in    the    fact    of    passing,  '"  See,  People  v.  Chadwick,  2  Park 

which  may  be  done  by  an  innocent  Cr.  Cas.  (N.  Y.)  163;  Stone  v.  State, 

person,  but  in  the  guilty  knowledge  20  N.  J.  L.  401. 

connected     therewith."       Common-  "People  v.  Davis,  21  Wend.    (N, 


221  ADMISSIONS.  [§§  2957,  2958. 

whose  name  appears  on  the  bills  as  president,  was,  in  fact,  its  presi- 
dent, may  be  shown  by  parol  evidence. •'''* 

§  2957.  Admissions. — As  a  general  rule  everything  that  the  de- 
fendant said  or  did  ot  the  time  of  the  alleged  offense,  constituting  part 
of  the  res  gestae,  may  be  shown  by  the  state.^^  His  admissions  and 
declarations,  though  made  to  others  and  at  other  times,  are  likewise 
competent  against  him.*"  But  it  has  been  held  that  the  contents  of 
a  letter  containing  counterfeit  money,  received  by  him  at  the  post- 
office  and  at  once  taken  from  him  before  he  had  opened  the  letter, 
cannot  be  shown.*^  The  passing  of  the  counterfeit  being  proved,  the 
defendant's  agency  may  be  shown  by  his  own  confession  without  any 
violation  of  the  rule  against  proving  the  corpus  delicti  by  the  con- 
fession of  the  accused.*^  So,  where  a  conspiracy  is  shown,  the  ad- 
missions of  one  of  the  conspirators  may  be  competent  even  against  the 
others.*^ 

§  2958.  Accomplices. — As  stated  in  the  last  preceding  section,  the 
admissions  of  a  co-conspirator  may  be  shown  in  a  proper  case,  after 
a  conspiracy  is  proved.  But  it  is  a  general  rule  that  the  evidence  of 
an  accomplice  is  not  sufficient  to  sustain  a  conviction  unless  it  is  sup- 
ported by  corroborating  evidence.^'*  It  has  been  held,  however,  that 
a  detective,  or  one  vv-ho,  in  concert  with  the  police,  buys  counterfeit 
money  from  the  accused  for  the  purpose  of  entrapping  him,  is  not 
an  accomplice  within  the  meaning  of  the  rule.*^ 

Y.)  309;  People  v.  Ah  Sam,  41  Cal.  (U.  S.)   729;   State  v.  Ford,  2  Root 

645;    People   v.    McDonnell,    80   Cal.  (Conn.)     93;    Reg.    v.    Attwood,    20 

285,  22  Pac.  190;  Jennings  V.  People,  Ont.    (Can.)   574;   Commonwealth  v. 

8  Mich  81;    State  v.  Pierce,  8  Iowa  Edgerly,  10  Allen   (Mass.)   184. 

231;  Reed  v.  State,  15  Ohio  217.  "Commonwealth    v.    Edgerly,    10 

""  State  V.   Smith,  5  Day    (Conn.)  Allen  (Mass.)  184. 

175,  5  Am.  Dec.  132.  «  United  States  v.  Marcus,  53  Fed. 

'^  State  v.  Smith,   5   Day    (Conn.)  784. 

175,  5  Am.  Dec.  132;  State  v.  Phelps,  "=  Taylor  v.  United  States,  32  C.  C. 

2   Root    (Conn.)    87;    McCartney   v.  A.  449.  89  Fed.  954. 

State,  3  Ind.  353,  56  Am.  Dec.  510;  "State  v.  Pepper,  11  Iowa  347. 

conflicting  statements  made  by  him  "  People  v.  Molins,  7  N.  Y.  Cr.  51, 

or  silence  when  called  upon  to  speak  10  N.  Y.  S.  130;    People  v.  Farrell, 

may  be   shown;    Commonwealth   v.  30  Cal.  316;  see  also,  Reg.  v.  Banneu, 

Starr,  4  Allen   (Mass.)   301;   United  2  Moody  C.  C.  309;  as  to  sufficiency 

States  V.  Kenneally,  5  Diss.  (U.  S.)  of  corroboration  see,  People  v.  Da- 

122.  vis,  21  Wend.   (N.  Y.)    309. 

"United  States  v.  Craig,  4  Wash. 


§§  2959-2961.]  counterfeiting.  222' 

§  2959.  Expert  evidence. — Expert  evidence  is  usually  resorted  to 
in  such  cases.  As  a  general  rule,  any  person  who  is  well  acquainted 
with  the  genuine  bills  or  coin  of  the  kind  alleged  to  be  counterfeited, 
may  testify  upon  the  subject.*"  Even  where  the  alleged  counterfeit  is 
that  of  a  note  of  a  bank,  other  witnesses  as  well  as  the  officers  of  the 
bank  may  be  competent.*'^  But  it  has  been  held  that  certain  pam- 
phlets known  as  bank  note  detectors  are  not  admissible  to  prove  the 
false  or  counterfeit  character  of  a  note.*^ 

§  2960.  Production  of  counterfeit  at  trial. — The  alleged  counter- 
feit is  the  best  evidence  of  its  character,  and  it  must  generally  be 
produced,*"  unless  out  of  the  jurisdiction  or  in  the  defendant's  pos- 
session,^" or  the  like,  so  that  its  absence  is  satisfactorily  accounted 
for.^^  The  same  rule  is  generally  applied  in  proving  scienter  by  evi- 
dence of  the  possession  or  passing  of  other  counterfeits.^^  But  the 
contrary  seems  to  have  been  held  in  Ohio.^^ 

§  2961.  Defenses. — The  defendant  may  introduce  any  proper  evi- 
dence tending  to  disprove  or  rebut  any  essential  fact  in  the  case  made 
by  the  state.  He  may  explain  his  possession  of  the  counterfeit  or 
counterfeiting  implements,  shown  by  the  state,  and  generally  intro- 
duce any  proper  evidence  to  meet  the  inference  of  his  guilt  that  might 
otherwise  arise  from  the  evidence  on  the  part  of  the  prosecution.    He 

*' Watson    v.    Cresap,    1    B.    Mon,  152;    Commonwealth   v.   Bigelow,   8 

(Ky.)    195,   36  Am.  Dec.  572;    State  Mete.  (Mass.)  235. 

V.  Allen,  1  Hawks  (N.  Car.)  6,  9  Am.  =»  State  v.  Potts,  9  N.  J.  L.  26,  17 

Dec.  616;  Martin  v.  Commonwealth,  Am.  Dec.  449;  State  v.  Ford,  2  Root 

2  Leigh  (Va.)  745;  and  authorities  (Conn.)    93;   Armitage  v.  State,  13 

cited  in  following  note.  Ind.  441. 

"  Commonwealth  v.  Carey,  2  Pick.  "  State   v.   Cole,   19   Wis.   129,   88 

(Mass.)  47;  Jones  v.  State,  11  Ind.  Am.  Dec.  678. 

357;  State  v.  Tutt,  2  Bail.  L.  (S.  "See,  Commonwealth  v.  Bigelow, 
Car.)  44,  21  Am.  Dec.  508;  State  v.  8  Mete.  (Mass.)  235;  State  v.  Breck- 
Carr,  5  N.  H.  367;  Tharpe  v.  Gis-  enridge,  67  Iowa  204,  25  N.  W.  130; 
burne,  2  Car.  &  P.  21,  12  E.  C.  L.  8;  Smith's  Case,  4  N.  Y.  City  H.  Rec. 
Watson  v.  Cresap,  1  B.  Mon.  (Ky.)  166;  People  v.  Lagrille,  1  Wheeler 
195,  36  Am.  Dec.  572;  Atwood  v.  Cr.  Cas.  (N.  Y.)  412;  Rex  v.  Mil- 
Cornwall,  28  Mich.  336,  15  Am.  R.  lard,  Russ.  &  Ry.  C.  C.  245. 
219;  but  see.  State  v.  Brown,  4  R.  I.  "Reed  v.  State,  15  Ohio  217;  see 
528,  70  Am.  Dec.  168;  Payson  v.  also,  Kirk  v.  Commonwealth,  9 
Everett,  12  Minn.  216.  Leigh  (Va.)  627;  McGregor  v.  State,, 

"  Payson  v.  Everett,  12  Minn.  216.  16  Ind.  9. 

^  State  v.  Orsborn,  1  Root  (Conn.) 


223  DEFENSES.  [§   2961^ 

may  show,  for  instance,  that  he  believed  the  counterfeit  bill  passed  by 
him  to  be  genuine  and  had  consulted  an  approved  "counterfeit  de- 
tector" to  determine  it.^*  So,  testimony  that  he  received  the  money 
in  the  ordinary  course  of  business  is  admissible  on  the  trial  of  a  charge 
for  having  it  in  his  possession,  and  may  be  a  good  defense  to  such  a 
charge. ^^  The  defendant  may  also  show  that  he  was  so  drunk  that 
he  did  not  know  what  he  was  doing  and  could  not  tell  that  the  bill 
was  counterfeit.^*'  He  may  also  introduce  evidence  of  his  good  char- 
acter.^^ 

"State  V.  Morton,  8  Wis.  167.  States   v.   Roudenbush,   Baldw.    (U. 

""United    States   v.    Kenneally,    5  S.)    514. 

Biss.   (U.  S.)   122.  "United    States    v.    Kenneally,    5 

"^Pigman  v.  State,  14  Ohio  555,  45  Biss.    (U.   S.)    122;    Griffin  v.   State,. 

Am.  Dec.  558;  but  compare.  United  14  Ohio  St.  55. 


CHAPTER  CXLI. 

EMBEZZLEMENT. 

Sec.  Sec. 

2962.  Generally.  2968.  Written  evidence. 

2963.  Distinguished  from  larceny.         2969.  Evidence  in  general. 

2964.  Presumption.  2970.  Demand. 

2965.  Burden  of  proof.  2971.  Defences. 

2966.  Question  of  law  or  fact.  2972.  "Weight  and  sufficiency  of  evi- 

2967.  Evidence  of  intent.  dence. 

§  2962.  Generally. — Embezzlement  is  said,  in  substance,  to  be  the 
fraudulent  appropriation  by  a  clerk,  agent,  trustee,  public  officer,  or 
other  person  acting  m  a  fiduciary  character,  to  his  own  use  or  benefit 
of  property  or  money  intrusted  to  him  by  another.  It  is  the  fraudu- 
lent appropriation  of  property  by  a  person  to  whom  it  has  been  in- 
trusted. The  term  is  applicable  to  cases  of  furtive  and  fraudulent 
appropriation  by  clerks,  servants,  or  carriers  of  property  coming  into 
their  possession  by  virtue  of  their  employment.  It  is  distinguished 
from  "larceny,"  properly  so  called,  as  being  committed  as  to  property 
which  is  not  at  the  time  in  the  actual  or  legal  possession  of  the  owner.^ 
It  is  a  statutory  offense,  and  seems  not  to  have  been  known  as  a  dis- 
tinct crime  at  common  law.  As  the  various  statutes  differ  consid- 
erably in  their  provisions  it  is  difficult  to  give  a  definition  that  will  be 
at  the  same  time  comprehensive  and  applicable  in  all  jurisdictions. 
In  addition,  however,  to  what  is  said  by  Mr.  Black,  it  may  be  said 
that  the  gist  of  embezzlement  is  the  conversion  or  breach  of  trust,  and 
there  must  be  a  fiduciary  relation  rather  than  that  of  a  mere  debtor 
and  creditor.^ 

1  Black  Law  Diet.;  see  also  elabo-  4,  27  S.  W.  811;    State  v.  Johnson, 

rate  note  in  87  Am.  St.  21,  et  seq.  21  Tex.  775;   Mulford  v.  People,  139 

The    distinction    is    further    consid-  111.    586,    28    N.    E.    1096;    see   also, 

ered  in  §<  2963.  Commonwealth  v.  Ryan,   155  Mass. 

=  Commonwealth     v.     Moore,     16^6  523,  30  N.  E.  364;    State  v.  Covert, 

Mass.   513,   44  N.  E.  612;    Ennis  v.  14  Wash.  652,  45  Pac.  304.     Fraudu- 

State,   3   Green    (Iowa)    67;    People  lent  intent  to  convert  is  necessary 

v.  Johnson,  91  Cal.  265,  27  Pac.  663;  under  most  statutes.     Robinson   v. 

Commonwealth   v.   Clifford,   96   Ky.  State,  109  Ga.  564,  35  S.  E.  57,  77 

224 


225  DISTINGUISHED    FROM    LARCENY.       [§§    29G3,    SOG-i. 

§  2963.  Distinguished  from  larceny. — Although  embezzlement  is 
sometimes  said  to  be  a  species  of  larceny,  yet,  technically,  there  is  an 
essential  distinction.  As  said  iii  a  recent  case:  "Embezzlement,  as 
distinguished  from  theft,  is  taking  property  of  another  in  the  pos- 
session of  the  accused  with  intent  to  defraud.  The  crimes  are  essen- 
tially the  same,  but  most  unfortunately  are,  for  the  purposes  of  prose- 
cution, entirely  distinct.  The  one  demands,  as  an  essential  element, 
a  trespass — a  breach  of  technical  possession ;  the  other  cannot  be  com- 
mitted unless  the  element  of  trespass  or  breach  of  technical  possession 
is  absent.  The  former  is  a  crime  at  common  law;  the  latter  is  a 
statutory  offense.'"^  In  larceny  there  must  be  a  technical  trespass  and 
a  felonious  intent  at  the  time  of  the  taking,  while  in  eml)ezzlement 
the  property  is  usually  in  the  possession  of  the  accused  and  the  original 
taking  was  lawful,  or  with  the  consent  of  the  owner,  and  the  felonious 
intent  may,  and  usually  must,  be  afterwards  formed.^ 

§  2964.  Presumptions. — Presumptions  arise  in  cases  of  embezzle- 
ment as  in  all  cases.  But,  as  will  be  shown  in  the  following  section, 
the  burden  of  proving  the  commission  of  the  crime  and  the  criminal 
•agency  is  always  upon  the  state.  The  mere  intentional  doing  of  an 
act  forbidden  by  law  may  give  rise  to  a  presumption,  or  at  least  jus- 
tify an  inference  of  unlawful  intent,^  and  it  has  been  held  that  an 
intent  to  embezzle  may  be  inferred  from  a  felonious  conversion.*^     A 

Am.    St.    392;    People   v.    Hurst,    62  30  So.  582,  87  Am.  St.  17,  and  note; 

Mich.   276,   28   N.  W.   838;    State  v.  Simco   v.    State,    8    Tex.    App.    406; 

Eastman,  60  Kans.  557,  57  Pac.  109;  People  v.  Gallagher,  100  Cal.  466,  35 

State  V.  Schilb,  159  Mo.  130,  60  S.  Pac.  80;    People  v.  Salrose,  62  Cal. 

W.  82;  Beaty  v.  State,  82  Ind.  228;  139;   People  v.  De  Coursey,  61  Cal. 

State  V.    Temple,    63    N.   J.   L.    375,  134;  Commonwealth  v.  King,  9  Cash. 

43    Atl.    697;    Fleener    v.    State,    58  (Mass.)    284;    Reeves    v.    State,    95 

Ark.  98,  23  S.  W.  1.  Ala.  31,  11  So.  158;    Levy  v.  State, 

'State   V.    Hanley,    70    Conn.    265,  79  Ala.   259;    State  v.  Harmon,   106 

39  Atl.  148;  see  also,  Commonwealth  Mo.    635,    18    S.   W.    128;    see   also, 

V.  Berry,  99  Mass.  428,  96  Am.  Dec.  Chap.  146. 

767;    Commonwealth    v.    Ryan,    155  '^  State  v.    Silva,   130   Mo.   440,   32 

Mass.  523,  30  N.  E.   364;    Common-  S.  W.  1007;  United  States  v.  Harper, 

wealth  v.  Barney,  115  Ky.  475,  74  S.  33  Fed.  471;  Dotson  v.  State,  51  Ark. 

"W.  181;   Commonwealth  v.  Clifford,  119,  10  S.  W.  18;  Spalding  v.  People, 

M   Ky.   4,    27    S.   W.    811;    Secor   v.  172   111.  40,   49   N.  E.  993;    State  v. 

State,  118  Wis.  621,  95  N.  W.  942;  McGregor,    88   Minn.    77,   92    N.    W. 

but  compare,   State  v.   Tabener,   14  458. 

R.   I.   272,  51  Am.  R.  382;    State  v.  « State  v.  Schilb,  159  Mo.  130.  60 

Shirer,  20  S.  Car.  392.  S.  W.  82;   State  v.  Noland,  111  Mo. 

*Eggleston  v.   State,   129  Ala.   80,  473,  19  S.  W.  715. 
Vol.  4  Elliott  Ev. — 15 


§    2964.]  EMBEZZLEMENT.  226 

presumption  has  been  held  to  arise  that  one  has  appropriated  money 
to  his  own  use  when  he  can  give  no  reasonable  account  of  a  pretended 
theft  shown  to  have  been  committed  while  the  money  was  in  his  pos- 
session.'^ And  it  has  been  held  under  some  statutes  that  the  failure 
or  refusal  of  a  retiring  county  treasurer  to  promptly  pay  over  to  his 
successor  any  of  the  public  money  in  his  hands  as  such  officer,  is 
prima  facie  evidence  of  embezzlement,  and  that  under  such  circum- 
stances a  presumption  of  embezzlement  would  arise. ^  But  such  a  pre- 
sumption does  not  arise  upon  proof  of  mere  failure  to  pay  money  when 
the  accused  is  not  a  public  officer  and  the  accusation  applies  to  private 
property,  for  in  such  case  there  must  be  the  necessary  criminal  intent, 
and  an  adverse  holding  of  the  property  depriving  the  owner  of  his  pos- 
session^ must  usually  be  shown,  A  presumption  of  fraudulent  intent, 
however  arises  against  a  banker  who  took  in  money  as  a  deposit  after 
he  was  insolvent,^  *^  whereby  the  money  was  lost  to  the  depositor,  and 
the  banker  is  presumed  or  bound  to  know  of  his  own  insolvency.^^  A 
presumption  as  to  venue  arises,  or,  more  properly  speaking,  it  may 
be  inferred  if  it  appears  that  the  accused  received  the  property  in  the 
county  alleged,  and  that  when  it  was  last  seen  in  his  possession  he  was 
in  that  county.^^  But  this  may  be  rebutted  by  proof  that  the  prop- 
erty was  taken  to  another  county  and  was  there  converted  to  the  use 
of  the  accused.^^  Eligibility  to  office  is  presumed  from  an  appoint- 
ment by  proper  authority  in  regular  form,  where  the  charge  is  against 
a  public  officer  for  embezzlement.^*  And  most  of  the  statutes  are 
construed  to  include  officers  de  facto  as  well  as  officers  de  jure.^^     And 

^  Riley  v.  State.  32  Tex.  763;   see  Ala.  104,  29  So.  799;  People  v.  Bau- 

also.    Smith    v.    State,    34    Tex.    Cr.  man,  105  Mich.  543,  63  N.  W.  516. 

App.  265,  30  S.  W.  236.  '"Commonwealth    v.    Rockafellow, 

« Whitney   v.    State,   53   Neb.    287,  163  Pa.  St.  139,  29  Atl.  757;   Ameri- 

73  N.  W.  696;  see  also,  United  States  can  &c.  Bank  v.  Gueder  &c.  Mfg.  Co., 

V.  Adams,  2  Dak.  305,  9  N.  W.  718;  150  111.  336,  37  N.  E.  227. 

People  V.  Warren,  122  Mich.  504,  81  "  Meadowcroft  v.  People,  163   111. 

N.  W.  360,  80  Am.  St.  582;  but  com-  56,   45   N.   E.   303,   35   L.   R.   A.   176, 

pare,  Robinson  v.  State,  109  Ga.  564,  54  Am.  St.  447. 

35  S.  E.  57,  77  Am.  St.  392;    State  '=Wallis  v.  State,  54  Ark.  611,  16 

V.  Hunnicut,  34  Ark.  562;  People  v.  S.  W.  821;  see  also,  Robson  v.  State, 

Westlake,  124  Cal.  452,  57  Pac.  465.  83   Ga.    166,   9    S.    E.    610;    State   v. 

» Fitzgerald  v.   State,  50   N.  J.  L.  Small,  26  Kans.  209. 

475,  14  Atl.  746;  Robinson  v.  State,  "State  v.  New,  22  Minn.  76. 

109  Ga.  564,  35  S.  E.  57.  77  Am.  St.  "  State  v.   Ring,  29   Minn.  78,   11 

392;    Chaplin  v.   Lee,   18   Neb.    440,  N.  W.  233. 

25   N.   W.   609;    State  v.   Butler,   21  '=  State    v.    Stone,    40    Iowa    547; 

S.  Car.  353;  Henderson  v.  State,  129  State  v.  Goss,  69  Me.  22;  Bartley  v. 


227  BURDEX    OF   PROOF,  [§    2965. 

it  has  been  held  that  in  the  absence  of  proof  of  a  criminal  intent,  the 
act  of  a  servant  giving  away  old  tools  belonging  to  his  master  will 
raise  a  presumption  that  he  did  so  as  a  matter  of  charity  rather  than 
with  an  intent  to  embezzle  them.^® 

§  2965.  Burden  of  proof. — The  same  rule  as  to  burden  of  proof 
holds  in  embezzlement  as  in  other  criminal  cases,  that  is,  the  burden 
of  proving  the  commission  of  the  crime  and  the  criminal  agency  is 
upon  the  state.  ^^  In  general,  under  most  of  the  statutes,  it  may  be 
stated  that  the  burden  of  proof  is  upon  the  prosecution  to  establish 
beyond  a  reasonable  doubt  four  distinct  propositions  or  elements  of 
fact.^^  That  is,  it  must  be  established,  that  the  accused  was  the  agent 
of  the  person  or  corporation,  and  that  he,  by  the  terms  of  his  employ- 
ment, was  charged  Avith  receiving  the  money  or  property  of  his  prin- 
cipal. It  must  also  be  established  that  as  a  matter  of  fact  he  did 
come  into  the  possession  of  the  property.  It  must  appear  that  he 
received  it  in  the  course  of  his  employment.  And  lastly,  it  must  he 
established  that  the  accused,  knowing  that  the  property  was  not  his, 
converted  it  to  his  own  use  or  to  the  use  of  another  who  is  not  the 
true  owner.^^  The  burden  of  proof  is  on  the  state,  under  most  of  the 
statutes,  to  show  that  the  thing  embezzled  came  into  the  possession 
of  the  accused  by  virtue  of  his  employment  as  an  agent  or  bailee  or 
the  like.^°  It  has  been  held,  however,  that  on  a  prosecution  against 
an  agent  for  embezzlement  there  is  no  burden  on  the  state  to 
prove  that  the  money  embezzled  was  the  property  of  the  defendant's 

State,  53   Neb.   310,  73   N.  W.   744;  App.    417;    Webb    v.    State,    8    Tex. 

Fortenberry  v.  State,  56  Miss.  286;  App.  310. 

Reg.  v.  Townsend.  C.  &  M.  178,  41  -"Bartow  v.  People,  78  N.  Y.  377; 

E.  C.  L.  102.  State  v.   Cooper,   102    Iowa   146,   71 

"State  V.  Fritchler,  54  Mo.  424.  N.  W.  197;  State  v.  Mahan,  138  Mo. 

"State  V.  Fritchler,  54  Mo.  424;  112,  39  S.  W.  465;  McAleer  v.  State, 

Strong  V.   State,   18   Tex.   App.   19;  46  Neb.  116,  64  N.  W.  358;   Hadley. 

State  V.  Foster,  1  Pen.   (Del.)   289,  Ex    parte,    31    Cal.    108;    see    also, 

40  Atl.  939.  Wynegar  v.  State,  157  Ind.  577,  62 
"Leonard   v.    State,   7   Tex.   App.  N.  E.  38;  Johnson  v.  Commonwealth, 

417;   People  v.  Cobler,  108  Cal.  538,     5   Bush    (Ky.)    430;    as  to   what  is 

41  Pac.  401.  sufficient  to  show  this,  see,  Ricord, 
Instate  v.  Blackley,   (N.  Car.)   .'')0     Ex    parte,    11    Nev.    287;    Common- 

S.  E.  310,  312;  State  v.  Schingen,  20  wealth  v.   Clifford,  96  Ky.   4.   27   S. 

Wis.  79;   Hedley,  Ex  parte,  31  Cal.  W.  811;  State  v.  Kortgaard,  62  Minn. 

108;   People  v.  Cobler,  108  Cal.  538,  7,  64  N.  W.  51. 
41  Pac.  401;  Leonard  v.  State,  7  Tex. 


§    29GG,]  EMBEZZLEMENT.  228 

principal.-^  And  it  has  been  said  that  when  a  prima  facie  case  of 
embezzlement  is  made  out  against  one  liandling  the  wares  of  another, 
it  is  incumbent  on  the  former  to  prove,  as  he  claimed,  that  he  had  in 
good  faith  sold  them  on  credit.^^  So,  where  the  prosecution  has  made 
a  prima  facie  case  of  embezzlement,  it  becomes  incumbent  upon  the 
defendant  to  adduce  evidence  in  denial  or  explanation  of  the  incrimi- 
nating circumstances.^^  And  where  the  statute  against  embezzlement 
contains  an  exception  or  exemption,  it  has  been  held  that  one  claim- 
ing to  come  under  said  provision  has  the  burden  of  establishing  that 
he  comes  under  such  exception  or  exemption.  But,  when  necessary 
to  be  shown,  the  burden  of  proof  is  on  the  state  to  establish  efforts 
of  the  accused  to  conceal  or  dispose  of  the  property  or  money.^^ 

§  2966.  Question  of  law  or  fact. — The  ordinary  rules  as  to  ques- 
tions of  law  or  fact  apply  in  embezzlement.  Thus,  the  interpreta- 
tion of  a  written  contract,  relied  on  by  the  state  as  establishing  the 
relation  of  principal  and  agent,  between  the  defendant  and  the  prose- 
cuting witness,  is  for  the  court. ^'^  But  it  is  a  question  for  the  jury  to 
determine  whether  a  relation  of  master  and  servant  has  existed  between 
the  prosecutor  and  the  accused  in  the  absence  of  any  written  contract 
when  there  is  a  dispute  as  to  the  facts. ^^  The  question  of  the  intent 
with  which  a  party  appropriated  money  or  property  is  usually  a  ques- 
tion of  fact.^^  So,  where  it  was  necessary  to  determine  in  an  embezzle- 
ment case,  whether  a  certain  transaction  was  a  pledge  or  pawn,  this 
has  been  held  to  be  a  question  for  the  jury  under  proper  instructions.-^ 
Thus,  where  a  stranger  who  had  hired  a  horse  and  buggy  in  another 
county,  went  to  a  liveryman  to  borrow  money,  saying,  "I  will  leave 
the  horse  and  buggy  here  with  you,  and  will  return  tonight  or  to- 
morrow and  pay  you  the  money,"  and,  after  getting  the  money,  left 

«  Willis  V.  State,  134  Ala.  429,  33  220.  15  S.  W.  716;  Fleener  v.  State, 

So.  226.  58   Ark.    98,   23    S.   W.    1;    State    v. 

^  Bridgers  v.   State,   8  Tex.  App.  Pierce,  77  Iowa  245,  42  N.  W.  181. 

145.  ''State  v.  Brown,  171  Mo.  477,  71 

^  Riley    v.    State,    32    Tex.    763;  S.  W.  1031. 

Bridgers  v.  State,  8  Tex.  App.  145;  ^^Reg.  v.  Foulkes,  13  Cox  Cr.  Cas. 

Hemingway  v.   State.   68  Miss.  371,  63. 

8  So.  317;   but  see,  State  v.  McDon-  "State   v.    Trolson,    21    Nev.    419, 

aid,  133  N.  Car.  680,  45  S.  E.  582;  32  Pac.  930. 

Lambeth  v.  State,  3  Tenn.  Cas.  754.  ^Wilson  v.   State,    (Fla.)    36   So. 

'=  State  V.  Tompkins,  32  La.  Ann.  580. 
620;  Stallings  v.  State,  29  Tex.  App. 


229  INTENT.  [§  2967. 

the  horse  and  buggy  and  never  returned,  the  question  of  whether  a 
pledge  or  pawn  was  thereby  intended  was  held  to  be  a  question  for 
the  jury  under  i)ropcr  instructions.^"  And  whether  a  claim  of  right 
to  retain  the  fund  was  asserted  by  the  accused  in  good  faith  has 
also  been  held  to  be  a  question  for  the  jury.^^ 

§2967.  Evidence  of  intent. —  Intent  from  its  very  nature  is  not 
capable  of  being  proved  directly,  and  consequently  the  courts  allow 
much  latitude  as  to  its  proof ;  almost  any  proper  evidence  is  admitted 
which  has  the  least  tendency  to  establish  fraudulent  intent.  So,  on 
the  other  hand,  the  same  latitude  is  allowed  to  show  the  good  faith 
and  intention  of  the  one  charged  with  embezzlement.^-  As  said  in 
one  case:  "In  embezzlement  generally  the  very  confidence  and  trust 
reposed  furnish  the  most  potent  means  for  its  accomplishment  and 
effectual  concealment,  so  that  guilt  can  generally  be  established  only 
by  reasonable  inferences  drawn  from  the  general  course  of  conduct 
of  such  officer,  agent,  clerk  or  servant,  with  respect  to  the  subject  mat- 
ter of  his  trust,  and  from  all  the  facts  and  circumstances  surrounding 
his  acts,  which  tend  to  throw  light  upon  or  illustrate  their  nature.""- 
Evidence  that  the  accused  has  committed  offenses  similar  to  that  in 
question  is  often  admitted  on  the  question  of  intent  or  motive.^* 
Where  one  intrusted  with  the  keeping  of  property  has  fled  carrying^ 
with  him  the  proceeds  of  the  sale  thereof,  such  fact  may  be  considered 
by  the  jury  in  determining  whether  the  sale  was  felonious.^'^  It  has 
been  held  that  upon  the  trial  of  an  indictment  of  a  broker,  evidence 
of  a  custom  among  brokers  may  be  received  to  show  the  absence  of 
fraudulent  intent,  if  the  custom  be  a  legal  one ;  but  that  evidence  of 
a  custom  which  is  not  legal  should  not  be  admitted  for  any  purpose.^*^ 
And  as  evidence  of  intent  it  has  been  held  admissible  to  show  that 

^nVilson   V.    State,    (Fla.)    36    So.  tarn,    32    Wash.    137,    72    Pac.    1042; 

580.  Taylor  v.  Commonwealth,   (Ky.)   75 

=>' State  V.  Lewis,  31  Wash.  75,  71  S.  W.  244;  People  v.  Van  Ewan,  111 

Pac.  778.  Cal.     144,    43     Pac.     520;     State    v. 

"People  V.   Pollock,   51    Hun    (N.  Holmes.  65  Minn.  230,  68  N.  W.  11; 

Y.)   613,  4  N.  Y.  S.  297;   Govatos  v.  People  v.   Hawkins,   106  Mich.   479, 

State,   116   Ga.    592,    42    S.    E.    708;  64  N.  W.  736;  Rex  v.  Ellis,  6  Barn. 

People  V.  Tomlinson,  102  Cal.  19,  36  &  C.  145.  13  E.  C.  L.  123. 

Pac.  506.  ''Commonwealth     v.     Hurd,     123 

'•■Reeves  v.   State,  95  Ala.   31,  11  Mass.  438. 

So.  158.  '''Commonwealth    v.    Cooper,    130 

'*  Commonwealth    v.    Tuckerman,  Mass.  285. 
10  Gray   (Mass.)   173;   State  v.  Pit- 


§   2968.]  EMBEZZLEMENT.  230 

the  books  of  the  company  whose  funds  were  embezzled,  and  of  which 
the  defendant  was  president,  had  been  falsified  by  fraudulent  entries, 
made  with  a  view  to  conceal  the  embezzlement,  at  the  defendant's  in- 
stance and  with  his  knowledge,  whether  made  at  the  time  of  the  act 
charged  or  afterwards.^'  An  intent  to  restore  the  property  is  imma- 
terial if  the  property  has  been  placed  beyond  the  control  of  the  ac- 
cused.^^  Thus,  it  has  been  stated,  "to  take  from  their  place  of  de- 
posit the  bonds  of  a  depositor  and  send  them  out  of  the  state  to  be 
used  as  collateral  security  for  the  defendant's  own  debt,  was  a  fraud- 
ulent conversion.  Intention  to  restore  the  bonds,  and  the  agreement 
of  the  party  who  received  them  not  to  sell  or  dispose  of  them,  cannot 
do  away  with  the  criminal  nature  of  the  transaction.  A  guilty  intent 
is  necessarily  inferred  from  the  voluntary  commission  of  such  an  act, 
the  inevitable  effect  of  which  is  to  deprive  the  true  owner  of  his  prop- 
erty and  to  appropriate  it  to  the  defendant's  own  use.  Perhaps  in  a 
majority  of  cases  the  party  who  violates  his  trust  in  such  a  manner  does 
not  expect  or  intend  that  the  ultimate  loss  shall  fall  upon  the  person 
whose  property  he  takes  and  misuses.  But  no  hope  or  expectation 
of  replacing  the  funds  abstracted  can  be  admitted  as  an  excuse  before 
the  law."3^ 

§  2968.  Written  evidence. — Written  evidence  is  admissible  in 
such  cases  and  often  is  very  important  evidence.  Thus,  public  rec- 
ords and  transcripts  and  official  statements  may  be  admissible  in  evi- 
dence.^" In  a  proper  case  false  entries  made  in  books  are  often 
relevant  and  it  need  not  be  shown  that  they  were  made  at  the  time  of 
the  embezzlement  or  that  they  were  made  by  the  accused,  if  it  suffi- 
ciently shows  that  they  were  made  at  his  instance  and  with  his  knowl- 
edge.*^ But  entries  in  the  books  of  the  accused  made  by  others  should 
not  ordinarily  be  received  as  evidence  in  the  absence  of  preliminary 
proof  that  the  attention  of  the  accused  was  called  to  such  entries.*^ 

=' Jackson   v.    State,   76   Ga.    551;  59    N.    W.   237;    State   v.    Ring,    29 

see   also,   Willis   v.   State,   134   Ala.  Minn.  78,  11  N.  E.  233;   Shivers  v. 

429,  33  So.  226.  State,  53  Ga.  149;   Tyler  v.  United 

5^  Spalding  v.   People,   172   111.   40,  States,  45  C.  C.  A.  247,  106  Fed.  137. 

49  N,  E.  993;  Harris  v.  State,  (Tex.  « Jackson    v.    State,    76   Ga.    551; 

Cr.  App.)  34  S.  W.  922.  People  v.  Wyman,   102  Cal.  552,  36 

^'Commonwealth    v.     Tenney,    97  Pac.  932. 

Mass.  50.  "  Lang  v.  State,  97  Ala.  41,  12  So. 

*»Bork  V.  People,  16  Hun   (N.  Y.)  183. 
476:  People  v.  Flock,  100  Mich.  512, 


231  WRITTEN    EVIDENCE.  [§    2968. 

And  it  has  been  said  tliat  before  the  ])ooks  of  a  party  can  be  admitted 
in  evidence  they  shoukl  be  submitted  to  the  inspection  of  the  court, 
and  if  tliey  do  not  appear  to  contain  regular  entries  made  in  the 
course  of  the  daily  business  of  the  party,  and  to  liave  been  honestly 
and  fairly  kept,  they  are  not  admissible.**  A  check  given  by  a  state 
treasurer  in  his  official  capacity  is  admissible  to  show  the  manner  of 
an  alleged  embezzlement  by  him,  though  the  official  seal  was  omitted 
therefrom.*^  And  a  draft  to  the  accused  is  admissible  to  show  receipt 
of  tlie  money  alleged  to  have  been  embezzled.*^  So,  the  annual  printed 
reports  of  the  state  treasurer  are  original  official  documents  and  are 
admissible  in  a  proper  case.*^  And  the  books  of  a  savings  bank,  kept 
by  the  accused,  who  was  the  secretary,  when  in  his  handwriting  are 
admissible  in  evidence  to  show  the  amounts  received  by  the  accused.*" 
Thus,  a  cash-book  showing  the  receipts  and  disbursements,  and  kept 
in  the  bank  under  the  supervision  of  the  defendant  as  the  manager 
of  a  bank,  is  admissible  to  show  the  balance  of  cash  on  hand  at  the 
time  of  the  alleged  embezzlement.*^  And  stub  duplicates  of  tax  re- 
ceipts, made  by  a  county  treasurer  as  required  by  law,  are  evidence 
of  the  receipt  of  the  taxes  represented  thereby,  although  they  never 
have  been  returned  by  him  to  the  auditor  as  he  is  required  to  do.^" 
And  it  has  been  held  that  letters  to  the  accused  are  admissible  on  the 
question  of  agency.''^  And  so  letters  written  to  the  accused  by  the 
prosecutor,  requesting  a  settlement  and  accounting  have  been  held 
admissible.^-  Also  letters  from  the  accused  bearing  upon  his  deal- 
ings with  the  funds  alleged  to  have  been  embezzled  are  competent.'^^ 
And  deposit  slips  have  been  held  admissible,  when  in  the  handwriting 
of  the  accused  for  the  purpose  of  showing  that  the  accused  properly 
accounted  for  the  funds  alleged  to  have  been  embezzled.^*  So,  en- 
tries in  private  books  are  often  admissible.  Thus,  in  a  prosecution 
against  an  officer,  or  other  agent,  entries  in  books  of  account  made 

"State  v.  Collins,  1  Marv.   (Del.)  =»  State  v.   Ring,   29   Minn.   78.   11 

536,  41  Atl.  144.  N.  W.  233. 

"State  V.  Noland,  111  Mo.  473,  19  "State  v.  Adams,  108  Mo.  208,  18 

&.  W.  715;   see  also,  State  v.  Krug,  S.  W.  1000. 

12  Wash.  288,  41  Pac.  126.  "•-  State  v.  Adams,  108  Mo.  208,  18 

*"  State  V.  Brooks,  85  Iowa  366,  52  S.  W.  1000. 

N.  W.  240.  =^  State  v.  Halstead,  73   Iowa  376, 

"  People  V.  McKinney,  10  Mich.  54.  35  N.  W.  457. 

""  Humphrey    v.    People.    18    Hun  "State  v.  Halstead,  73  Iowa  376, 

(N.  Y.)  393.  35  N.  W.  457. 

*">  People  V.  Leonard,  106  Cal.  302, 
39  Pac.  617. 


g    2969.]  EMBEZZLEMENT.  233 

by  the  accused  or  under  his  direction,  and  statements  of  account,  re- 
ceipts and  checks  given  by  him,  are  admissible,  if  made  or  given  be- 
fore the  finding  of  the  indictment.^^ 

§  2969.  Evidence  in  general. — The  offense  may  be  proved  by  cir- 
cumstantial evidence  as  well  as  direct  evidence.^*'  As  a  general  rule, 
any  proper  facts  or  circumstances  bearing  upon  the  possession  or  cus- 
tody of  the  property  by  the  accused  or  the  manner  of  his  holding  or 
receiving  such  property  may  be  introduced  in  evidence."  And  so  it 
may  be  stated  generally  that  the  prosecution  may  show  any  facts  which 
tend  materially  to  prove  the  receipt  by  the  accused  of  the  money  or 
property  alleged  to  have  been  embezzled,  and  a  conversion  of  it  by 
the  accused.^*^  Fraudulent  vouchers  and  false  statements  in  regard 
to  the  matter  are  relevant.^^  So  when  the  accused  is  an  agent,  re- 
ceipts given  by  him  to  debtors  of  his  principal  over  his  own  name  are 
admissible  in  evidence  against  him.«°  And  on  a  trial  for  embezzling 
money,  the  draft  for  the  money  is  competent  evidence  to  show  how 
defendant  acquired  its  possession.^^  It  has  been  held  competent  to 
show  that  the  books  kept  by  the  accused  have  been  falsified  by  fraudu- 
lent entries  with  a  view  to  conceal  the  embezzlement,  whether  they 
were  made  at  the  time  of  the  act  charged  or  afterwards.^^  ^^^  where 
it  was  proved  that  the  accused  deposited  money  he  was  charged  with 
embezzling  in  a  bank,  evidence  that  he  checked  out  the  money  so 
deposited  was  admissible  as  tending  to  show  conversion  of  the  funds.^^ 
In  order  to  establish  embezzlement  by  a  public  officer  it  has  been  held 

^Commonwealth    v.     Smith,    129  Md.  527,  26  Atl.  1022;  People  v.  Van 

Mass.  104;  Denton  v.  State,  77  Md.  Ewan,    111    Cal.    144,    43    Pac.    520; 

527,  26  Atl.  1022;  Humphrey  v.  Peo-  People  v.  Dorthy,  20  App.  Div.    (N. 

pie,' 18  Hun  (N.  Y.)  393.  Y.)    308,   46   N.   Y.   S.   970;    Stanley 

=^«  State  V.  Porter,  26  Mo.  201;  New  v.  State,  88  Ala.  154,  7  So.  273. 

York  Ferry  Co.  v.  Moore,  12  N.  Y.  ^  Carr   v.    State,    104    Ala.    43,    16 

667,  6  N.  E.  293;  Territory  V.  Meyer,  So.    155;    Malcolmson    v.    State,    25 

3   Ariz.   199,  24   Pac.   183;    State  v.  Tex.  App.  267,  8  S.  W.  468. 

Foster,   1   Pen.    (Del.)    289,   40   Atl.  =»  Commonwealth    v.    Moore,     166 

939;    Fleener  v.   State,   58  Ark.   98,  Mass.  513,  44  N.  E.  612. 

23  S.  W.  1;  see  also  Robson  v.  State,  ""People  v.   Van   Ewan,   111    Cal. 

83   Ga.    166,   9    S.    E.    610;    State   v.  144,  43  Pac.  520. 

Cowan,  74  Iowa  53,  36  N,  W.  886;  "State  v.  Brooks,  85  Iowa  366,  52 

Mills  v.  State,  53  Neb.  263,  73  N.  W.  N.  W.  240. 

761.  «=  Jackson  v.  State,  76  Ga.  551. 

"State  V.   Sienkiewiez,    (Del.)    55  "^^  State  v.  Woodward,  171  Mo.  593,, 

Atl.   346;    Commonwealth  v.  Smith,  71  S.  W.  1015. 
129  Mass.  104;    Denton  v.  State,  77 


233  EVIDENCE   IN   GENERAL.  [§    2969^.. 

not  to  be  necessary  to  produce  a  written  certificate  of  the  appointment 
as  an  officer  or  to  show  that  he  has  given  an  official  bond.*'*  If  owner- 
ship of  the  property  is  hiid  in  a  corporation  the  charter  or  certificate 
of  incorporation  need  not  be  introduced  in  evidence. "^  The  employer, 
it  has  been  held,  may  give  parol  testimony  as  to  the  fact  of  agency 
or  contract  of  employment  and  afterward  he  may  be  cross-examined 
as  to  the  facts  upon  which  he  formed  his  conclusion.««  But  this  has 
been  disputed  in  some  jurisdictions.^'  Evidence  of  usage  and  custom 
has  been  held  to  show  that  the  money  came  into  the  custody  of  the 
accused  through  his  employment.^^  And  expert  accountants  may  be 
permitted  to  give  in  evidence  the  result  of  their  investigations  of 
the  accounts  and  the  like  kept  by  the  accused  in  his  trust  capacity, 
where  such  are  too  voluminous  to  permit  of  an  investigation  of  them 
in  the  court-room.'''*  Testimony  of  expert  accountants  who  have  ex- 
amined the  books  and  papers  of  the  office  of  a  county  treasurer  as  to 
the  totals  of  the  amounts  received  and  paid  out  by  him,  as  shown  by 
such  books  and  records,  is  competent.'*'  And  a  summary  taken  by 
an  expert  from  the  books  kept  by  the  accused  for  his  employer  is 
competent  to  show  the  condition  of  the  employer's  accounts.^^  Evi- 
dence of  the  pecuniary  condition  of  defendant  charged  with  embezzle- 
ment immediately  prior  to,  and  during  the  time  the  offense  is  alleged 
to  have  been  committed,  is  competent. ^^  Evidence  is  competent  which 
shows  what  disposition  the  accused  made  of  the  property'^     Admis- 

«*  State  v.  Dierberger,  90  Mo.  369,  «» State  v.   Findley,   101   Mo.   217, 

2  S.  W.  286;    State  v.  Findley,  101  14     S.    W.    185;     Hollingsworth    v. 

Mo.    217,    14    S.    W.    185;    see    also.  State,   111    Ind.   289,  12   N.   E.   490; 

State  v.  Mims,  26   Minn.  183,  2  N.  Willis  v.  State,  134  Ala.  429,  33  So. 

W.  494,  683.  226;  Ritter  v.  State,  70  Ark.  472,  69 

•■"Jackson    v.    State,    76    Ga.    551;  S.   W.    262;     Woodruff  v.    State,    61 

Commonwealth  v.  Dedham,  16  Mass.  Ark.  157,  32  S.  W.  102. 

141;  see  also,  Thalheim  v.  State,  38  ™  Hollingsworth  v.  State,  111  Ind. 

Fla.  169,  20  So.  938.  289,  12  N.  E.  490. 

6«  State  V.  Brooks,  85  Iowa  366,  52  "  State  v.   Reinhart,   26   Ore.   466, 

N.  W.   240;    the  relation  of  agency  38  Pac.  822. 

or  the  like  may  be  shown  by  circum-  ''-  United  States  v.  Camp,  2  Idaho 

stantial   evidence;    State  v.  Ezzard,  215,   10   Pac.   226;    see  also,   Boston 

40  S.  Car.  312,  18  S.  E.  1025;  People  &c.  Co.  v.  Dana,  1  Gray  (Mass.)  33; 

v.  Royce,  106  Cal.  173,  37  Pac.  630.  Reeves  v.  State,  96  Ala.  33,  11  So. 

"People    V.    Bidleman,    104    Cal.  296. 

608,  38  Pac.  502;  see  also.  Thalheim  "State  v.  Brooks,  85  Iowa  366,  52 

V.  State,  38  Fla.  169,  20  So.  938.  N.  W..  240;   Malcolmson  v.  State.  25 

"*' State  V.  Silva,  130  Mo.  440,  32  Tex.  App.  267,  8  S.  W.  468;   People. 
S.  W.  1007. 


§    2969.]  EMBEZZLEMENT.  234 

sions  by  the  accused  are  competent  against  him.  Thus,  an  admission 
by  the  accused  of  any  material  fact  in  support  of  the  indictment  is 
competent  against  him  when  the  fact  itself  and  its  admission  occurred 
before  the  commission  of  the  offense  charged,  and  neither  involves 
any  criminal  intent  or  conduct  or  any  acknowledgment  of  guilt  on 
his  part.''*  And  the  fact  that  the  defendant  does  not  reply  to  a  letter 
which  requests  a  settlement  has  been  held  in  connection  with  the  letter 
to  be  competent  evidence  as  an  admission.''^  So,  upon  the  trial  of  a 
defendant  under  an  indictment  for  embezzlement  of  moneys  of  his 
principal,  a  corporation,  coming  to  his  hands  as  an  agent,  letters 
found  in  the  office  recently  occupied  and  vacated  by  the  defendant, 
and  in  letter  files  kept  by  him,  in  the  handwriting  of  the  officers  of 
such  principal,  and  touching  the  matter  of  the  agency  of  the  defend- 
ant, such  letters  appearing  to  have  been  invited  by  other  letters  from 
the  defendant,  and  to  have  been  acted  upon  in  the  course  of  the  agency, 
were  held  to  be  relevant  upon  the  question  of  the  agency  of  the 
defendant,  and  admissible  in  evidence  against  him.''*'  Evidence  may 
be  introduced  which  shows  a  continuous  series  of  conversions  in  pur- 
suance of  a  conspiracy.'''^  As  said  in  one  ease:  "The  trust  and  confi- 
dence reposed  in  the  accused  necessarily  affords  the  amplest  oppor- 
tunity to  misappropriate  the  funds  intrusted  to  his  care,  and  makes 
it  almost,  if  not  quite,  impossible  to  prove  just  when  and  how  it  was 
done,  but  the  ultimate  fact  of  embezzlement  is  susceptible  of  direct 
proof,  and  that  is  the  act  against  which  the  statute  is  directed.  The 
crime  may,  as  in  the  case  at  bar,  consist  of  many  acts  done  in  a  series 
of  years,  and  the  fact  at  last  be  discovered  that  the  employer's  funds 
have  been  embezzled,  and  yet  it  be  impossible  for  the  prosecution  to 
prove  the  exact  time  or  manner  of  each  or  any  separate  act  of  con- 
version. In  such  case,  if  it  should  be  compelled  to  elect,  and  rely  for 
conviction  upon  any  one  single  act,  the  accused,  although  he  might 
be  admitted  guilty  of  embezzling  large  sums  of  money  in  the  aggre- 
gate, would  probably  escape  conviction.  The  law  does  not  afford 
exemption  from  just  and  merited  punishment  on  mere  technical 
grounds,  which  do  not  in  any  way  affect  the  guilt  or  innocence  of  the 

V.   Bidleman,  104   Cal.   608,   38   Pac.  "State  v.  Adams,  108  Mo.  208,  18 

502.  S.  W.  1000. 

^*  State  V.  Mims,  26  Minn.   183.  2  ^=Thalheim  v.  State,  38  Fla.  169, 

N.  W.   683;    see  also,   State  v.   Car-  20  So.  938. 

rick,    16    Nev.    120;    Commonwealth  "Jackson  v.  State,  76  Ga.  551. 
V.  Sawtelle,  141  Mass.  140,  5  N.  E. 
312. 


235  DEMAND.  [§   2970. 

defendant,  or  the  merits  of  tlie  ease/''^  Although  the  value  of  several 
pieces  of  property  is  alleged  in  a  lump  sum,  the  value  of  each  j)iece 
may  be  proved  by  itself.''^  The  position  and  duties  of  the  servant 
of  a  club  may  be  shown  by  proof  of  his  position  and  duties  in  another 
society,  the  predecessor  of  the  club,  the  servant  having  retained  the 
same  position  and  performed  the  same  services  in  the  club  as  in  the 
old  society.**"  On  a  trial  for  larceny  in  borrowing  and  converting 
a  chattel,  the  owner's  salesman  may  testify  that  he  did  not  sell  the 
chattel  to  defendant  or  charge  it  to  him.^^  If  the  state  treasurer 
omits  to  charge  himself,  in  the  county  where  his  office  is  kept,  with 
the  receipt  of  money,  or  if  he  denies  its  receipt  there,  this  has  been 
"held  to  be  evidence  of  an  embezzlement  in  that  county.®-  As  shown 
in  tlie  section  on  intent,  it  is  held  in  a  number  of  cases  that  the  crim- 
inal intent  may  be  shown  by  evidence  of  other  like  acts  of  embezzle- 
ment at  about  the  same  period.*^ 

§  2970.  Demand. — As  a  general  rule  no  demand  is  necessary  to 
support  a  prosecution  for  embezzlement,  unless  the  statute  requires 
a  demand.***  If  an  actual  fraudulent  conversion  under  such  circum- 
stances as  to  constitute  embezzlement  is  otherwise  shown  no  demand 
is  necessary.®^     But  it  is  the  rule  under  some  statutes  that  there 

"State  V.  Reinhart,  26  Ore.   466,  47  Atl.  644;   Alderman  v.  State,  57 

38  Pac.  822.  Ga.  367;  Wallis  v.  State,  54  Ark.  611, 

"State  V.  Mook,  40  Ohio  St.  588.  16   S.   W.    821;    State   v.    Porter,   26 

^''Grillo  V.  State,  9  Ohio  C.  C.  394.  Mo.    201;    Commonwealth    v.    Mead, 

*' State  V.  Kasper,  5  Wash.  174,  31  160  Mass.  319,  35  N.  E.  1125. 

Pac.  636.  ^  Commonwealth    v.    Hussey,    111 

**- People  V.  McKinney,  1  Mich.  54.  Mass.  432;    State  v.  New,  22  Minn. 

''  People  v.   Gray,    66   Cal.   271,   5  76.    Demand  held  unnecesary  where 

Pac.  240;   People  v.  Van  Ewan,  111  the  embezzler  absconds;   Kossakow- 

Cal.    144,    43    Pac.    520;    Bulloch    v.  ski  v.  People,  177  111.  563,  53  N.  E. 

State,   10   Ga.   47;    Brown   v.   State,  115;  People  v.  Carter,  122  Mich.  668, 

18  Ohio   St.  496;    Stanley  v.   State,  81  N.  W.  924;   upon  this  subject  it 

88  Ala.  154,  7  So.  273;  State  v.  Kort-  has  been   said:    "It  is  necessary  to 

gaard,    62    Minn.    7,    64    N.    W.    51;  allege    and    prove    a    demand    only 

Commonwealth    v.    Tuckerman,    10  where  the  statute  makes  it  an  ele- 

Gray    (Mass.)    173;    Commonwealth  ment  of  the  crime.     As  the  statute 

V.    Eastman,   1    Cush.    (Mass.)    189,  under  consideration  does  not  make  a 

and  other  authorities  cited,  §  2968.  demand  such  an  element,  no  demand 

**  State  V.  Blackley,  (N.  Car.)  50  was  necessary.  The  crime  charged 
S.  E.  310;  State  v.  Mason,  108  Ind.  was  not  a  failure  to  pay  over  the 
48,  8  N.  E.  716;  Hollingsworth  v.  money  on  demand,  but  simply 
State,  111  Ind.  289,  12  N.  E.  490;  a  felonious  conversion.  If  the  de- 
State  V.  Reynolds,  65  N.  J.  L.  424,  fendant    had    thv.s     converted     the 


§  2971.] 


EMBEZZLEMENT. 


23(> 


should  be  a  demand  and  refusal  in  order  to  show  a  conversion  of  the 
property.'*"'  And  it  has  been  decided  that  even  if  a  demand  for  the 
property  by  the  true  owner  is  not  necessary,  yet  proof  of  such  a 
demand  may  be  relevant  and  competent  if  followed  by  a  refusal  since 
it  would  tend  to  show  a  fraudulent  conversion."  It  has  often  been 
held  that  where  property  has  been  feloniously  appropriated  to  the 
use  of  another,  it  is  not  necessary  to  show  a  demand.'"^  Thus,  it  would 
be  unnecessary  to  make  a  demand  for  the  property  when  the  accused 
admits  that  he  has  sold  it.^"  And  it  has  also  been  held  that  if  the 
embezzler  absconds  so  that  it  is  impossible  to  make  a  demand,  the 
conversion  may  be  otherwise  shown  and  proof  of  a  demand  is  un- 
necessary under  such  circumstances.'"' 

§  2971.  Defenses. — As  already  stated,  an  intent  to  restore  the 
money  or  property  embezzled  is  generally  immaterial  if  it  has  been 
placed  by  the  accused  beyond  his  control.^^  Indeed,  the  fact  that 
the  accused  intended  to  restore  property  embezzled  by  him,^^  qj.  even 
that  the  loss  had  been  made  good^^  does  not  constitute  a  defense  to 


money  his  crime  was  complete,  and 
his  response  to  a  demand  could  not 
have  absolved  him;  if  he  had  not 
thus  controverted  it,  he  was  not 
guilty."  Wallis  v.  State,  54  Ark. 
611,  16  S.  W.  821. 

*"  See,  State  v.  Pierce,  7  Kans. 
App.  418,  53  Pac.  278;  Wright  v. 
People,  61  111.  382;  87  Am.  St.  40, 
note. 

"Burnett  v.  State,  60  N.  J.  L. 
255,  37  Atl.  622;  State  v.  Reynolds, 
65  N.  J.  L.  424,  47  Atl.  644;  State 
V.  Bryan,  40  Iowa  379;  People  v. 
Royce,  106  Cal.  173,  37  Pac.  630,  69 
Pac.  524. 

-'» State  V.  New,  22  Minn.  76;  State 
v.  Tompkins,  32  La.  Ann.  620;  Kos- 
sakowski  v.  People,  177  111.  563,  53 
N.  E.  115;  United  States  v.  Sander, 
6  McLean  (U.  S.)  598;  Common- 
wealth V.  Hussey,  111  Mass.  432. 

*"  State  V.  Foley,  81  Iowa  36,  46 
N.  W.  746;  United  States  v.  Adams, 
2  Dak.  305,  9  N.  W.  718. 

^' Kossakowski  v.  People,  177  111. 


563,  53  N.  E.  115;  People  v.  Carter, 
122  Mich.  668,  81  N.  W.  924. 

^1  Spalding  v.  People,  172  111.  40, 
49  N.  E.  993;  Harris  v.  State,  (Tex. 
Cr.  App.)  34  S.  W.  922;  Common- 
wealth V.  Tenney,  97  Mass.  50;  see 
also,  Commonwealth  v.  Butterick, 
100  Mass.  1,  97  Am.  Dec.  65.  In 
some  states,  however,  a  restoration 
or  the  like  may  go  in  mitigation 
of  the  punishment. 

»-  People  V.  De  Lay,  80  Cal.  52.  22 
Pac.  90;  People  v.  Butts,  128  Mich 
208,  87  N.  W.  224;  Vives  v.  United 
States,  34  C.  C.  A.  403,  92  Fed.  355. 

"^Fleener  v.  State,  58  Ark.  98.  23 
S.  W.  1;  Thalheim  v.  State,  38  Fla. 
169,  20  So.  938;  Meadowcroft  v. 
People,  163  111.  56,  45  N.  E.  303.  3-3 
L.  R.  A.  176,  54  Am.  St.  447;  State 
V.  Tull,  119  Mo.  421,  24  S.  W.  1010; 
in,  Meadowcroft  v.  People,  163  111. 
56,  45  N.  E.  303,  it  is  said:  "The 
restitution  of  money  that  has 
been  either  stolen  or  embezzled,  or 
a    tender    or    offer    to    return    the 


237 


DEFENSES — SUFFICIENCY    OF    EVIDENCE. 


[§  2972. 


SL  criminal  prosecution  for  the  embezzlement.  It  is  not,  ordinarily 
a  good  defense  to  show  that  the  agency  was  illegal,  or  the  money  or 
property  was  obtained  by  the  accused  to  transact,  or  in  the  transaction 
of  an  unlawful  business;"*  nor  that  the  property  taken  was  used  as 
a  decoy  ;"^  nor  that  the  accused  worked  on  a  commission  or  per- 
centage and  was  to  pay  over  only  what  remained  after  deducting  such 
commission  or  percentage,  where  he  embezzled  such  remaining  part."" 
But  it  has  been  held  a  good  defense  to  show  that  he  had  an  interest 
in"^  or  lien  upon"^  the  property  alleged  to  have  been  embezzled.  So, 
of  course,  proper  evidence  is  admissible  on  the  part  of  the  accused 
to  rebut  the  evidence  of  the  prosecution  and  to  show  the  lack  of  any 
essential  element  or  fact  necessary  to  be  established  in  order  to  sup- 
port a  conviction. 

§  2972.  Weight  and  sufficiency  of  the  evidence. — As  already 
stated,  the  same  rule  applies  in  prosecutions  for  embezzlement  as  in 
other  criminal  prosecutions,  that  is,  the  state  must  prove  beyond  a 


same  or  its  equivalent  to  the  party 
from  whom  it  was  stolen  or  em- 
bezzled, does  not  bar  a  prosecu- 
tion by  indictment  and  conviction 
for  such  a  larceny  or  embez- 
zlement. The  effect  of  the  tender 
and  payment  in  court  may  be  a  dis- 
charge from  the  indebtedness  for 
the  deposit  fraudulently  received, 
so  far  as  the  depositor  and  his  civil 
remedies  are  concerned;  but  the 
crimes  having  been  fully  consum- 
mated before  indictment  found,  it 
is  not  within  the  power  of  the  bank- 
er, or  the  depositor,  or  either  of 
them,  to  compromise  or  take  away 
the  right  of  the  state  to  insist  upon 
a  conviction  for  the  crime  commit- 
ted. It  is  not  to  be  presumed  that 
in  creating  the  offense  and  in  pro- 
viding for  its  punishment  it  was  the 
intention  of  the  legislature  to  make 
the  criminal  courts  of  the  state  col- 
lecting agencies  for  collecting  the 
debts  due  to  depositors  from  insolv- 
•ent  banks  and  bankers." 


°*  State  V.  Tumey,  81  Ind.  559; 
Woodward  v.  State,  103  Ind.  127,  2 
N.  E.  321;  Commonwealth  v.  Smith, 
129  Mass.  104;  Commonwealth  v. 
Cooper,  130  Mass.  285;  People  v. 
Hawkins,  106  Mich.  479,  64  N.  W. 
736;  State  v.  O'Brien,  94  Tenn.  79. 
28  S.  W.  311;  State  v.  Hoshor,  26 
Wash.  643.  67  Pac.  386. 

""Goode  V.  United  States,  159  U. 
S.  663,  16  Sup.  Ct.  136;  Common- 
wealth V.  Ryan,  155  Mass.  523,  30 
N.  E.  364. 

*"  Territory  v.  Meyer,  3  Ariz.  199, 
24  Pac.  183;  Commonwealth  v.  Fish- 
er, 113  Ky.  491,  68  S.  W.  855;  Peo- 
ple V.  Hanaw,  107  Mich.  337,  65  N. 
W.  231;  Campbell  v.  State,  35  Ohio 
St.  70;  Rex  v.  Hartley,  Russ.  &  Ry. 
C.  C.  139;  Rex  v.  Carr,  Russ.  &  Ry. 
C.  C.  198. 

"Rose  V.  Innis,  35  111.  487,  85  Am. 
Dec.  373;  Commonwealth  v.  Butter- 
ick,  100  Mass.  1.  97  Am.  Dec.  65. 

"'  Van  Etten  v.  State.  24  Neb.  734, 
40  N.  W.  289,  1  L.  R.  A.  669. 


2972.] 


EMBEZZLEMENT. 


238 


reasonable  doubt  every  essential  element  of  the  offense.^^  Thus,  the 
evidence  must  establish  that  the  emplo}Tnent  or  relation  of  trust 
existed  ;^^°  and  a  felonious  intent  must  be  shown  beyond  a  reasonable 
doubt  ;^"^  that  is,  the  evidence  should  establish  an  intent  to  defraud 
beyond  a  reasonable  doubt."^  And  the  evidence  must  not  only  suffi- 
ciently establish  the  intent  to  defraud  the  owner,  but  also  conversion 
of  the  property  to  one's  own  use,  or  to  the  use  of  some  other  person. 
That  is,  the  intention  to  convert  must  also  be  established.^"^  The 
gist  of  embezzlement  being  the  conversion  or  the  breach  of  trust,  the 
evidence  must  be  sufficient  to  establish  it.^"*  But  in  many  cases,  as 
where  the  circumstances  are  sufficient  to  prove  a  wilful  and  unlawful 
conversion,  an  intent  to  convert  may  and  usually  should  be  in- 
ferred.^°^  In  order  to  warrant  a  conviction,  however,  a  conversion 
must  usually  be  established  which  the  agent,  under  his  employment 
had  no  right  to  make.^'^^  It  must  be  shown  that  the  accused  was  in 
the  employ  of  or  held  a  relation  of  trust  or  confidence  towards  the 
person  whose  property  he  is  alleged  to  have  wrongfully  taken  for  his 
own  use;  and  any  evidence  which  tends  to  prove  these  facts  may  in 


^  See,  §  2965,  on  burden  of 
proof;  State  v.  Baldwin,  70  Iowa 
180,  30  N.  W.  476. 

^•^  Calkins  v.  State,  18  Ohio  St. 
366,  98  Am.  Dec.  121;  see  also,  Gri- 
der  V.  State,  133  Ala.  188,  32  So. 
254;  Bartlow  v.  People,  78  N.  Y.  377; 
Wilbur  V.  Territory,  3  Wyo.  268,  21 
Pac.  698;  Rex  v.  Snowley,  4  Car.  & 
P.  390,  19  E.  C.  L.  436. 

"'  State  V.  McDonald,  133  N.  Car. 
680,  45   S.  E.  582. 

"^  McElroy  v.  People,  202  111.  473, 
66  N.  E.  1058.  But  it  may,  of  course, 
be  inferred  from  circumstances. 
United  States  v.  Harper,  33  Fed. 
471;  State  v.  Kortgaard,  62  Minn. 
7,  64  N.  W.  51. 

i°='Beaty  v.  State,  82  Ind.  232; 
State  v.  Lyon,  45  N.  J.  L.  272;  People 
V.  Page,  116  Cal.  386,  48  Pac.  326; 
People  V.  Hurst,  62  Mich.  276,  28  N. 
W.  838;  Stalllngs  v.  State,  29  Tex. 
App.  220,  15  S.  W.  716;  State  v.  Kort- 
gaard, 64  Minn.  7,  54  N.  W.  51; 
Mulford   V.   People,   139   111.   586,   28 


N.  E.  1096;  State  v.  Pratt,  98  Mo. 
482,  11  S.  W.  977;  State  v.  Hopkins, 
56  Vt.  250;  State  v.  Trolson,  21  Nev. 
419,  32  Pac.  930. 

^'^  Commonwealth  v.  Ryan,  155 
Mass.  523,  30  N.  E.  364;  Common- 
wealth V.  Moore,  166  Mass.  513,  44 
N.  E.  612;  Commonwealth  v.  Clif- 
ford, 96  Ky.  4,  27  S.  W.  811;  Peo- 
ple V.  Johnson,  91  Cal.  265,  27  Pac. 
663;  Ennis  v.  State,  3  Green  (Iowa) 
67. 

"^Commonwealth  v.  Moore,  166 
Mass.  513,  44  N.  E.  612;  State  v. 
Noland,  111  Mo.  473,  19  S.  W.  715: 
State  V.  Cunningham,  154  Mo.  161, 
55  S.  W.  282;  State  v.  Brame,  61 
Minn.  101,  63  N.  W.  250;  People  v. 
Wadsworth,  63  Mich.  500,  30  N.  W. 
99;  see  also,  Dotson  v.  State,  51  Ark. 
119,  10  S.  W.  18;  People  v.  Jackson, 
138  Cal.  462,  71  Pac.  566. 

"'"State  v.  Hill,  47  Neb.  456,  66 
N.  W.  541;  State  v.  Wallick,  87  Iowa 
369,  54  N.  W.  246. 


239  WEIGHT   AND    SUFFICIENCY    OF    EVIDENCE.  [§    2972. 

general  be  received  as  relevant  evidence.'"'  So  where  the  evidence 
shows  the  relation  to  be  that  of  debtor  and  creditor  it  is  not  sufficient, 
for  the  evidence  must  show  that  a  relation  of  trust  existed  between 
the  accused  and  the  owner  of  the  property."^  ^Vhere  the  accused 
originally  gained  control  of  the  property  by  trick  or  accident  there 
can  be  no  embezzlement  for,  as  distinguished  from  larceny,  it  must 
appear  that  the  accused  at  the  time  of  his  wrongful  act  was  in  lawful 
possession  of  the  property. ^"^  But  it  is  not  always  essential  that  the 
proof  should  show  that  the  embezzler  had  physical  or  manual  pos- 
session of  the  money  or  property,  and  it  has  been  held  that  legal 
possession  is  all  that  is  required.^'"  It  must,  however,  be  establislied 
by  the  evidence  that  the  property  alleged  to  have  been  converted  was 
the  property  of  the  employer  of  the  accused  or  was  secured  by  him 
in  such  a  way  as  to  be  capable  of  being  embezzled."^  And  so  if  the 
evidence  introduced  by  the  prosecution  is  consistent  wuth  good  faith 
on  the  part  of  the  accused  it  may  be  insufficient  to  show  such  an 
intent  to  embezzle  as  is  necessary  under  the  statutes."^  To  support 
a  conviction  of  the  accused  as  a  public  official,  the  evidence  must  show 
the  official  character  of  the  accused  and  bring  the  act  alleged  within 
the  statute  under  which  proceedings  were  brought. ^^^  Where  the 
charge  is  the  embezzlement  of  property  of  a  corporation,  proof  of 
the  de  facto  existence  of  the  corporation  is  generally  sufficient."* 
Evidence  was  held  sufficient  to  warrant  a  conviction  of  embezzlement 
where  it  showed  that  the  accused  received  certain  goods  to  sell  for 
the  owner  and  failed  to  account  for  them  and  that  he  had  admitted 
that  he  had  sold  them  and  intended  to  keep  the  proceeds."'^  It  has 
also  been  held  that  a  person  may  be  convicted  on  the  uncorroborated 

"^Stanley   v.    State,   88   Ala.   154,  "^  Brady   v.    State,    21    Tex.    App. 

8  So.  273;  Thalheim  v.  State,  38  Fla.  659,  1  S.  W.  642. 

169,  20  So.  938.  "-State  v.   Wallick,   87   Iowa  369, 

^"^Mulford  V.  People,  139  111.  586,  54  N.  W.  246. 

28  N.  E.  1096.  "'  State  v.  Mahan,  138  Mo.  112,  39 

^'«' Commonwealth  v.  Barry,  99  S.  W.  465;  People  v.  Page,  116  Cal. 
Mass.  428,  96  Am.  Dec.  767;  Phelps  386,  48  Pac.  326;  State  v.  Mims,  26 
V.  People,  72  N.  Y.  334;  People  v.  Minn.  183,  2  N.  W.  494;  Robson  v. 
Johnson,  91  Cal.  265,  27  Pac.  663;  State,  83  Ga.  166,  9  S.  B.  610;  Hem- 
State  V.  Carrick,  16  Nev.  120;  Com-  ingway  v.  State,  68  Miss.  371,  8  So. 
monwealth    v.    O'Malley,    97    Mass.  317. 

584;    Lowenthal    v.    State,    32    Ala.  "*  State   v.   CoUens,   37   La.    Ann. 

589;    Fulcher  v.   State,   32   Tex.   Cr.  607;  Thalheim  v.  State,  38  Fla.  169, 

App.  621,  25  S.  W.  C25.  20  So.  938. 

"0  State  V.  Krug,  12  Wash.  288,  41  "=  State  v.   Foley,   81   Iowa  36,  46 

Pac.  126.  N.  W.  746. 


■^    -2972.]  EMBEZZLEMENT.  240 

evidence  of  the  books  kept  ])y  him  for  his  employer  and  which  he 
falsified  to  conceal  his  speculations. "«  So,  it  has  been  held  that  facts 
showing  a  conversion  are  sufficient  without  showing  liow  the  accused 
finally  disposed  of  the  property.^  i'  And  proof  of  embezzlement  by  cir- 
cumstantial evidence  is  sufficient. ^^•'*  Proof  of  conversion  of  funds  is 
sufficient  without  proof  of  the  exact  amount  alleged ;  in  other  words, 
the  exact  amount  is  immaterial. "»  And  it  is  generally  held  that 
any  evidence  tending  to  show  that  the  property  was  of  value  is  suf- 
ficient in  this  respect  to  sustain  a  verdict  of  conviction.^^o  Where  a 
bailee  of  a  note  is  charged  with  its  embezzlement,  it  is  sufficient  proof 
of  its  value  that,  being  negotiable  and  not  due  at  the  time  of  its  con- 
version, defendant  was  able  to  sell  and  dispose  of  it  for  its  face.^-^ 
A  confession  or  an  admission  which  relates  to  the  course  of  action 
of  the  accused  during  his  entire  employment  in  a  certain  service  is 
competent  evidence,  as  it  necessarily  has  reference  to  and  marks  all 
the  acts  and  matters  alleged  to  have  been  done  within  that  period.^'" 
Proof  of  a  series  of  criminal  acts  resulting  in  the  embezzlement  of 
a  sum  of  money  is  sufficient  to  sustain  a  finding  that  the  aggregate 
amount  as  set  out  was  embezzled. ^-^  A  sliowing  that  money  belong- 
ing to  a  minor  was  intrusted  to  the  public  administrator,  and  that 
he  did  not  have  the  funds,  and  had  not  paid  them  to  the  ward  or  her 
creditors,  or  to  his  successor  in  office,  has  been  held  sufficient  to 
sustain  a  conviction  of  embezzlement.^-*  In  a  recent  case  it  was  held 
that  there  was  a  bailment  and  a  sufficient  conversion  to  authorize  a 
<?onviction  for  embezzlement  where  an  employer  sent  his  employe  to 
^et  some  medicine,  intrusting  a  horse  to  him  to  ride  for  such  purpose, 
and  the  employe,  instead  of  going  for  the  medicine,  went  to  another 

"'State  v.  Reinhart,  26  Ore.  466,  St.  588;    unless  for  the  purpose  of 

58  Pac.  822.  determining  the  grade  of  the  crime 

"^  State  V.  King,  81  Iowa  587,  47  or   fixing  the   punishment.    Gerard 

N.  W.  775.  V.  State,  10  Tex.  App.  690. 

"'  Epperson  v.  State,  22  Tex.  App.  ^-°  Walker  v.  State,  117  Ala.  42,  23 

694,  3  S.  W.  789;  Fleener  V.  State,  58  So.    149;    Harris  v.    State,    21   Tex. 

Ark.  98,  23  S.  W.  1;   Malcolmson  v.  App.    478,    2    S.    W.    830;     State    v. 

State,  25  Tex.  App.  267,  8  S.  W.  468;  Thompson,  28  Ore.  296,  42  Pac.  1002. 

see  also,  Bullock  v.  State,  10  Ga.  47,  ^-^  State  v.  Thompson,  28  Ore.  296, 

54    Am.    Dec.    369;    State   v.    Hasle-  42  Pac.  1002. 

dahl,  3  N.  Dak.  36,  53  N.  W.  430.  "^  Commonwealth  v.  Sawtelle,  141 

""  United  States  v.  Harper,  33  Fed.  Mass.  140,  5  N.  E.  312. 

471;   State  v.  Fourchy,  51  La.  Ann.  ^=^  State  v.  Pratt,  98  Mo.  482,  11  S. 

228,  25  So.  109;  State  v.  Thomas,  28  W.  977;  Jackson  v.  State,  76  Ga.  551. 

La.  Ann.  827;  State  v.  Hunt,  (R.  I.)  "*  State  v.  Laughlin,  180  Mo.  342, 

54  Atl.  937;   State  v.  Mook,  40  Ohio  79  S.  W.  401. 


241  WEIGHT  AND  SUFFICIENCY   OF   EVIDENCE.  [§    2972. 

place,  and  was  there  found  endeavoring  to  sell  the  horse. ^"  In  an- 
other recent  case  it  was  held  that  the  offense  of  embezzlement  from  a 
national  bank  under  the  United  States  statute  involves  two  general 
elements.  First,  a  breach  of  trust  or  duty  regarding  the  fund  or  prop- 
erty embezzled,  which  must  have  been  lawfully  in  the  custody  or  pos- 
session of  the  accused  by  virtue  of  his  office  or  employment,  although 
such  possession  need  not  have  been  exclusive  of  that  of  other  officers, 
clerks,  or  agents ;  and,  second,  by  the  wrongful  appropriation  of  such 
property  to  his  own  use,  with  intent  to  injure  or  defraud  the  associa- 
tion or  others;  that  such  intent  need  not  necessarily  have  been  the 
object  or  purpose  with  which  the  act  was  done;  but  it  was  sufficient 
if  the  natural  and  necessary  effect  of  the  act  was  to  injure  or  defraud 
the  bank  or  others,  and  it  was  wilfully  and  intentionally  done;  and 
that  an  officer  of  such  a  bank  is  not  guilty  of  embezzlement,  abstrac- 
tion, or  wilful  misapplication  of  its  funds  under  such  statute  in  ob- 
taining money  from  the  bank  for  his  own  use  by  means  of  overdrafts 
or  loans  by  bona  fide  arrangement  with  its  authorized  officers  or 
committee,  but  he  is  only  protected  by  such  arrangement  where  it 
was  made  by  those  representing  the  bank  in  good  faith  and  in  the  sup- 
posed interest  of  the  bank.^^s  jj^  g^ill  another  recent  case  the  evidence 
showed  that  the  defendant  had  come  to  the  prosecuting  witness  and 
informed  such  witness  that  he  could  sell  certain  sacks  dealt  in  by 
the  witness  for  a  certain  commission,  the  witness  to  collect  the  price 
and  the  defendant  to  come  back  the  next  day  for  his  commission.  The 
witness  shipped  the  sacks  and  the  defendant  went  with  them,  sold 
them  as  his  own,  and  appropriated  the  proceeds.  The  prosecuting 
witness  also  testified  that  the  defendant  was  not  in  his  employ  and 
had  no  authority  to  collect  the  money.  It  was  held  that  the  defend- 
ant was  not  guilty  of  embezzlement,  as  the  property  was  not  intrusted 
to  him  and  he  never  had  rightful  possession  of  it.^" 

"=  Wilson     V.     State,      (Tex.     Cr.  «« United    States    v.    Breese,    131 

App.)  82  S.  W.  651;  see  also,  Stead-  Fed.  915. 

ham  V.  State,  40  Tex.  Cr.  App.  43,  ^"People  v.  Dougherty,   (Cal.)   77 

48  S.  W.  177;  Malz  v.  State,  36  Tex.  Pac.  466. 
Cr.  App.  447,  34  S.  W.  267.  37  S.  W. 
748. 


Vol.  4  Elliott  Ev. — 16 


CHAPTER  CXLII. 


FALSE   PRETENSES. 


Sec. 

Sec. 

2973. 

Generally. 

2980. 

Evidence    to    prove    the    pre- 

2974. 

Distinguished   from   other   of- 

tense. 

fenses. 

2981. 

Reliance  on  pretense. 

2975. 

Intent. 

2982. 

Defenses. 

2976. 

Other  crimes  and  transactions 

2983. 

Declarations  and  admissions — 

— Preparation. 

Co-conspirators. 

2977. 

Symbol  or  token. 

2984. 

SuflSciency  of  evidence — Vari- 

2978. 

The  pretense. 

ance — Miscellaneous. 

2979. 

The    pretense  —  Whether     it 
must   be    calculated    to    de- 
ceive. 

§  2973.  Generally. — Various  forms  of  cheating  were  indictable  of- 
fenses at  common  law/  but  the  old  common  law  was  defective  in  not 
covering  certain  forms  of  false  pretenses,  and  statutes  have  since 
been  passed  upon  the  subject  in  England  and  in  most  of  the  states. 
These  differ  somewhat  in  their  provisions,  and  it  is  therefore  difficult 
to  give  a  definition  of  the  crime  that  will  hold  good  in  all  cases.  The 
following  definition  of  a  false  pretense,  however,  will  serve  to  give 
a  general  idea  of  the  offense :  "A  false  pretense  is  a  false  and  fraudu- 
lent representation  of  a  fact  as  existing  or  having  taken  place,  made 
with  knowledge  of  its  falsity,  with  intent  to  deceive  and  defraud,  and 
which  is  adapted  to  induce  the  person  to  whom  it  is  made  to  part 
with  something  of  value."^  It  has  also  been  said,  in  substance,  that 
to  warrant  a  conviction,  the  evidence  must  show  that  the  accused 
made  or  exhibited  to  the  complainant  some  false  affirmation  as  to  mat- 
ter of  existing  fact,  or  some  delusive  token  or  device ;  that  he  did  this 
knowingly  and  fraudulently;  that  it  was  done  under  circumstances 
which  ordinary  prudence  would  not  avoid ;  and  that  by  means  of  it 
the  accused  obtained  value,  money,  goods,  signature  to  an  evidence 

'See,  2  East  P.  C.  818,  823,  4  804;  for  other  definitions  see,  10  L. 
Blackstone  Comm.  157.  R.  A.  302,  note. 

'12    Am.    &    Eng.    Bncy.    of   Law 

242 


243  DISTIKGUISIIKD   FROM   OTHER   OFFENSES.       [§§    2974,    2975. 

of  debt,  or  the  like,  to  which  he  was  not  entitled.^  In  other  words, 
as  said  in  a  recent  text-book:  "Four  essential  facts  must  be  proved 
to  constitute  the  crime  of  false  pretense.  First,  the  intent  to  defraud 
some  particular  person  or  people  generally.  Second,  an  actual  fraud 
committed.  Third,  the  false  pretense,  and  fourth,  that  the  fraud 
resulted  from  the  employment  of  the  false  pretense.''* 

§  2974.  Distinguished  from  other  offenses. — Forgery  is,  in  a  sense, 
a  false  pretense,  but  false  pretense  does  not  necessarily  involve  a 
forgery.  So,  counterfeiting  involves  a  false  pretense,  but  a  false 
pretense  is  not  confined  to  counterfeiting.  It  is  sometimes  very  dif- 
ficult to  distinguish  between  larceny  and  false  pretense,  but  in  larceny, 
although  by  iraud  or  trick,  there  is  generally  a  preconceived  design 
on  the  part  of  the  taker  to  steal  it  and  the  property  is  not  delivered 
with  the  intention  of  parting  with  it  altogether,  that  is,  the  owner 
may  deliver  possession,  but  the  fraud  vitiates  the  apparent  consent 
and  he  does  not  intentionally  part  with  the  title  as  well  as  the  pos- 
session, while  if  he  intended  to  part  with  the  entire  property,  owner- 
ship and  title  as  well  as  possession,  the  offense  is  generally  that  of 
obtaining  the  property  by  false  pretenses.  This  distinction  is  fully 
considered  in  the  chapter  on  larceny.^ 

§  2975.  Intent. — An  intent  on  the  part  of  the  defendant  to  de- 
fraud is  an  essential  element,  sometimes  said  to  be  the  gist  of  the 
offense,  and  the  burden  is  on  the  state  to  establish  it  beyond  a  reason- 
able doubt.®    As  a  general  rule,  all  the  relevant  circumstances  at  the 

=•1   Abbott   L.    Diet.    479;    but  see  People  v.  Wakely,  62  Mich.  297,  28 

section  considering  the  question  as  N.  W.  871. 

to  whether  it  must  be  calculated  to  °  See  also,  Commonwealth  v.  Bar- 
deceive  a  prudent  person,  post,  ry,  124  Mass.  325;  Zink  v.  People, 
§  2979.  See  also,  as  the  elements  of  77  N.  Y.  114;  Loomis  v.  People,  67 
the  offense  and  what  must  be  shown  N.  Y.  322,  327;  Smith  v.  People,  53 
in  general,  25  Am.  St.  378,  389,  note,  N.  Y.  Ill;  Miller  v.  Commonwealth, 
and,  10  L.  R.  A.  302  note;  see  also,  78  Ky.  15;  State  v.  Anderson,  47 
State  v.  Clark,  46  Kans.  65,  26  Pac.  Iowa  142;  Grunson  v.  State,  89  Ind. 
481;  People  v.  Wakely,  62  Mich.  297,  533,  46  Am.  R.  178;  People  v.  Mar- 
28  N.  W.  871;  State  v.  Wilbourne,  tin,  102  Cal.  558,  36  Pac.  952;  Reg. 
87  N.  Car.  529.  v.  Russett,   (1892)   2  Q.  B.  312,  314; 

*  Underbill  Cr.   Bv.,   §  436,  citing,  2    Russell    Crimes     (9th    Am.    ed.) 

Commonwealth    v.    Drew,    19    Pick.  200;  and,  10  L.  R.  A.  302,  308,  note, 

(Mass.)     179;     State    v.    Clark,    46  25  Am.  St.  391,  note. 

Kans.  65,  66,  26  Pac.  481;  People  v.  "Edwards  v.  State,    (Fla.)    33  So. 

Jordan,  66  Cal.   10,  12,  4  Pac.  773;  853;    State  v.  Metsch.  37  Kans.  222, 


2975.] 


FALSE  PRETENSES. 


244 


time  of,  and  accompanying  or  surrounding  the  transaction  in  question, 
are  proper  to  be  shown  in  evidence/  and  considerable  latitude  is 
generally  allowed  in  the  introduction  of  evidence  upon  this  question.** 
The  intent  of  the  prosecuting  witness  to  part  with  the  title  to  his 
property  is  also  frequently  important.^  It  is  generally  held  that  the 
fraudulent  intent  of  the  defendant  may  be  inferred  from  the  falsity 
of  the  pretenses  and  the  attendant  circumstances/"  but  the  fact  that 
it  may  be  inferred  by  the  jury  does  not  render  incompetent  other 
proper  evidence  tending  to  show  it."  The  judgment  roll  in  an 
action  in  which  the  defendant's  title  was  adjudged  invalid  has  been 
held  admissible,  in  connection  with  other  evidence,  to  show  his  knowl- 
edge and  guilty  intent  in  selling  the  property  thereafter.^^     Evidence 


15  Pac.  251;  Dorsey  v.  State,  111 
Ala.  40,  20  So.  629;  State  v.  Dennis, 
80  Mo.  589;  State  v.  Myers,  82  Mo. 
558,  52  Am.  Dec.  389;  People  v. 
Baker,  96  N.  Y.  340,  343;  State  v. 
Garris,  98  N.  Car.  733,  4  S.  E.  633; 
Sharp  V.  State,  53  N.  J.  L.  511,  21 
Atl.  1026;  Popinaux  v.  State,  12 
Tex.  App.  140;  Hornbeck  v.  State, 
10  Tex.  App.  408;  Porter  v.  State, 
23  Tex.  App.  295,  4  S.  W.  889;  see 
also,  State  v.  Fields,  118  Ind.  491,  21 
N.  E.  252;  Commonwealth  v.  Jef- 
fries, 7  Allen  (Mass.)  548,  83  Am. 
Dec.  712;  State  v.  Oakley,  103  N. 
Car.  408,  9  S.  E.  575. 

'People  V.  Gibbs,  98  Cal.  661,  33 
Pac.  630;  State  v.  Miller,  49  Mo. 
505;  State  v.  Moats,  108  Iowa  13,  78 
N.  W.  701;  State  v.  Jamison,  74 
Iowa  613.  38  N.  W.  509. 

*Trogdon  v.  Commonwealth,  31 
Gratt.  (Va.)  862;  McGee  v.  State, 
117  Ala.  229,  23  So.  797;  State  v. 
Garris,  98  N.  Car.  733.  4  S.  E.  633; 
People  v.  Baker,  96  N.  Y.  340,  348; 
Commonwealth  v.  Jeffries,  7  Allen 
(Mass.)  568,  83  Am.  Dec.  712;  Com- 
monwealth v.  Stone,  4  Mete.  (Mass.) 
43;  see  also,  Britt  v.  State.  9 
Humph.  (Tenn.)  31;  Long  v.  State, 
1  Swan  (Tenn.)  287;  White  v.  State. 


86  Ala.  69,  5  So.  674;    Newberry  v. 
State,  (Tex.  Cr.  App.)  22  S.  W.  1041. 

"State  V.  Anderson,  47  Iowa  142; 
Loomis  V.  People,  67  N.  Y.  322,  23 
Am.  R.  123.  And  he  may  testify  as 
to  his  intention.  Commonwealth  v. 
Drew,  153  Mass.  588,  27  N.  E.  593. 
Or  he  may  detail  the  res  gestae. 
Commonwealth  v.  Schwartz,  92  Ky. 
510,  18  S.  W.  775. 

"Mack  V.  State,  63  Ala.  138,  140; 
People  V.  Baker,  96  N.  Y.  340;  State 
V.  Neimeier,  66  Iowa  634,  24  N.  W. 
247;  State  v.  Haines,  23  S.  Car.  173; 
People  V.  Herrick,  13  Wend.  (N.  Y.) 
87;  Strong  v.  State,  86  Ind.  208; 
State  V.  Garris,  98  N.  Car.  733,  4 
S.  E.  633;  State  v.  Walton,  114  N. 
Car.  783.  18  S.  E.  945. 

"  State  V.  Myers,  82  Mo.  558,  52 
Am.  R.  389;  Trogdon  v.  Common- 
wealth, 3  Gratt.  (Va.)  862.  It  is 
generally  a  question  for  the  jury. 
State  V.  Norton,  76  Mo.  180;  Doreey 
V.  State,  111  Ala.  38,  40,  20  So.  629; 
Brown  v.  People.  16  Hun  (N.  Y.) 
535;  Woodruff  v.  State,  61  Ark.  157, 
179,  32  S.  W.  102;  Reg.  v.  Cooper, 
2  Q.  B.  Div.  510,  46  L.  J.  M.  C.  219. 

12  People  v.  Hamberg,  84  Cal.  468, 
24  Pac.  298. 


245 


INTENT OTHER   CRIMES. 


[§    2976. 


that  he  was  hopelessly  insolvent  has  also  been  held  admissible  for  the 
same  purpose/^  and  schedules  made  by  him  in  bankruptcy  have  been 
held  admissible  in  such  cases."  So,  the  disposition  made  by  the 
defendant  of  goods  obtained  by  false  pretense  may  ])e  admissible  to 
show  his  intent. ^^ 

§  2976.  Other  crimes  and  transactions — Preparation. — Evidence 
of  similar  offenses,  involving  the  making  of  other  false  representa- 
tions within  reasonable  limits  as  to  time  and  circumstances,  whether 
before  or  after  the  time  in  question  and  whether  to  the  same  person  or 
to  others,  is  admissible  against  the  defendant  to  show  that  he  was  aware 
of  the  falsity  of  the  statements  made  by  him  in  the  instance  in  ques- 
tion, and  that,  knowing  them  to  be  false,  he  made  them  with  the 
intent  to  deceive."  Evidence  of  similar  false  pretenses  has  been  said 
to  be  particularly  relevant  when  it  appears  that  the  fraudulent  act 
for  which  the  accused  is  on  trial  does  not  stand  alone,  but  is  a  part 
of  a  scheme,  not  merely  to  defraud  one  individual,  but  to  swindle  the 
community  at  large."    Thus,  where  the  defendant  was  charged  with 


"  Commonwealth  v.  Jeffries,  7  Al- 
len (Mass.)  548,  83  Am.  Dec.  712. 

"  Commonwealth  v.  Drew,  153 
Mass.  588,  27  N.  B.  593;  Abbott  v. 
People,  75  N.  Y.  602;  see  also.  Smith 
V  State,  55  Miss.  514;  but  compare, 
State  v.  Long,  103  Ind.  481,  3  N.  E. 
169. 

^^  State  V.  Lichliter,  95  Mo.  402, 
8  S.  W.  720;  see  also,  as  to  disposi- 
tion of  all  his  other  property.  State 
V.  Call,  48  N.  H.  126;  see  also.  State 
V.  Luxton,  65  N.  J.  L.  605,  48  Atl. 
535,   affirming  46   Atl.    1101. 

"People  v.  Wakely,  62  Mich.  297, 
28  N.  W.  871;  People  v.  Henssler, 
48  Mich.  49,  11  N.  W.  804;  People  v. 
Summers,  115  Mich.  537,  73  N.  W. 
818;  Hutcherson  v.  State,  (Tex.  Cr. 
App.)  35  S.  W.  375;  Martin  v.  State, 
36  Tex.  Cr.  App.  125,  35  S.  W.  976; 
State  V.  Walton,  114  N.  Car.  783,  18 
S.  E.  945;  Trogdon  v.  Common- 
wealth, 31  Gratt.  (Va.)  862,  863; 
State  V.  Myers,  82  Mo.  558.  52  Am. 
R.   389;    State  v.   Jackson,   112   Mo. 


585,  589,  20  S.  W.  674;  State  v. 
Rosenberg,  162  Mo.  358,  62  S.  W. 
435,  982;  Commonwealth  v.  East- 
man, 1  Cush.  (Mass.)  189;  Common- 
wealth V.  Jeffries,  7  Allen  (Mass.) 
548,  83  Am.  Dec.  712;  Common- 
wealth V.  Blood,  141  Mass.  571,  575, 
6  N.  E.  769;  State  v.  Lapage,  57  N. 
H.  245;  Bielschofsky  v.  People,  3 
Hun  (N.  Y.)  40;  Mayer  v.  People. 
80  N.  Y.  364;  dissenting  opinion. 
Strong  V.  State,  86  Ind.  208;  State 
V.  Long,  103  Ind.  481,  3  N.  E.  169; 
Reg.  V.  Ollis  (1900),  2  Q.  B.  758; 
Reg.  V.  Francis,  12  Cox  Cr.  Cas. 
612;  but  see.  State  v.  Bokien,  14 
Wash.  403,  44  Pac.  889;  People  v. 
Garrahan,  19  App.  Div.  (N.  Y.) 
347,  46  N.  Y.  S.  497. 

"Underbill  Cr.  Ev.,  §  438;  Raf- 
ferty  v.  State,  91  Tenn.  655,  666,  16 
S.  W.  728;  Carnell  v.  State,  85  (Md.) 
36  Atl.  117;  Commonwealth  v.  Howe. 
132  Mass.  250,  260;  Commonwealth 
V.  Coe.  115  Mass.  481;  People  v. 
Henssler,    48    Mich.    49,    11    N.    W. 


§  2977.]  FALSE  PRETEXSES.  246 

falsely  pretending  that  a  forged  certificate  of  stock  was  genuine, 
evidence  of  the  possession  and  use  of  other  forged  certificates  of  stock 
by  him,  at  about  the  same  time,  whether  before  or  afterwards,  was 
held  admissible  on  the  question  of  guilty  knowledge  and  intent.^'* 
So  evidence  that  the  defendant  has  drawn  other  drafts  of  the  same 
kind  as  the  one  charged  on  the  same  firm,  with  which  he  falsely  pre- 
tended to  have  credit,  and  that  they  had  not  been  paid,  has  been  held 
admissible  to  show  that  he  had  no  credit  with  such  firm,  and  therefore 
knew  that  his  draft  on  such  firm  would  not  be  paid.^^  So,  in  another 
ease,  evidence  tending  to  show  that  defendant,  by  his  long  experience 
in  the  business  of  handling  and  selling  horses,  knew  that  the  horse 
sold  was  not  of  the  character  or  in  the  condition  representated  by 
him  was  held  competent  and  admissible.-"  In  still  another  case, 
where  the  defendant  was  charged  with  obtaining  money  by  false  pre- 
tenses on  a  railway  train,  evidence  to  show  the  system  on  which 
similar  operations  had  been  conducted  by  defendant  and  his  accom- 
plices for  some  days  previous  and  up  to  the  time  in  question  was  held 
admissible  upon  the  question  of  intent.^^  And  evidence  showing 
preparation  and  preliminary  step  taken  by  the  defendant  is  generally 
admissible  for  the  same  purpose.^^ 

§  2977.  Symbol  or  token.— In  some  of  the  statutes,  the  term 
'•false  token  or  symbol"  is  used  in  defining  the  means  of  obtaining 
the  property,  and  the  use  of  this  phrase  has  given  rise  to  some  con- 
troversy. It  is  said  that,  "Any  token  or  symbol  of  a  character  pos- 
sessing larceny,  subtlety,  or  generality  of  operation  likely  to  affect  all 
within  its  range  is  a  public  token  or  symbol  at  common  law."^-    The 

804;    Strong  v.   State,   86   Ind.   208,  "  Commonwealth  v.  Coe,  115  Mass. 

217;    Commonwealth    v.    Blood,    141  481. 

Mass.  571,  576,  6  N.  E.  769;  but  in-  ^^  People   v.    Wasservogle,    77    Cal. 

dependent  acts  unconnected  with  the  173,  19  Pac.  270. 

crime  in  question  were  rejected  in,  *>  Jackson  v.  People,  126   111.   139, 

Todd  V.  State,  31  Ind.  514;  Common-  18  N.  E.  286. 

wealth  V.  Jackson,  132  Mass.  16,  and  *'  State  v.  Beaucleigh,  92  Mo.  490, 

the  transactions  must  not  be  too  re-  4  S.  W.  666;  see  also,  the  somewhat 

mote;    State    v.    Church,    43    Conn,  similar  case  of,   Grunson   v.    State, 

471;  Mayer  v.  People,  80  N.  Y.  364;  89  Ind.  533,  where  the  accused  was 

Trogdon      v.      Commonwealth,      31  convicted  of  larceny. 

Gratt.    (Va.)    862;   see  also.  State  v  "State   v.    Montgomery,    56    Iowa 

Wilson,  72  Minn.  522,  75  N.  W.  715.  195,  9  N.  W.  120;  People  v.  Winslow, 

And   not,    it   has   been    held,    subse-  39  Mich.  505. 

quent  to   the    indictment;    State    v.  ='12  Ency.  of  Law    (2d  ed.)    808; 

Letourneau,  41  R.  I.  3,  51  Atl.  1048.  compare,  State  v.  Patillo,  4  Hawks 


-247 


THE   PRETENSE. 


u 


ja:8. 


nse  of  a  false  token  was  essential  to  constitute  a  cheat  of  a  private 
nature  under  the  old  English  statute  against  obtaining  property  by 
cheats  effected  by  privy  tokens.^*  Something  real  and  visible  was 
required  as  distinguished  from  the  mere  words,  as  a  ring,  a  key,  or  a 
writing  or  the  like ;  and  it  seems  that  even  a  writing  would  not  suf- 
fice unless  it  was  in  the  name  of  another,  and  of  such  a  character  as 
to  afford  more  credit  than  the  mere  representation  or  assertion  of  the 
party  defrauding.^^  And  under  a  statute  at  one  time  in  force  in 
Indiana,  somewhat  different  from  the  statute  now  in  force,  it  was 
held  that  the  false  use  of  a  genuine  writing  was  not  the  use  of  a  false 
token  or  writing.^®  But,  under  most  statutes  the  false  pretense  may 
be  either  in  words  or  in  acts,  or  in  both.^^ 

§  2978.  The  pretense. — The  false  pretense  is  an  essential  element 
of  the  offense,  and  it  must  relate  to  an  existing  or  past  fact,  and  not 
merely  to  a  future  event.^^  So,  it  must  amount  to  more  than  the 
mere  expression  of  an  opinion.^^    Thus,  a  mere  promise  or  statement 


(N.  Car.)  348,  and  State  v.  Grooms, 
5  Strobb.  L.  (S.  Car.)  158,  and  see, 
2  Bishop  New  Cr.  Law,  §§  151,  152. 

^  See,  People  v.  Johnson,  12  Johns. 
(N.  Y.)  292;  State  v.  Phifer,  65  N. 
Car.  321;  State  v.  Vanderbilt,  27  N. 
J.  L.  328. 

^  See,  Rex  v.  Lara,  6  Term  R.  365, 
2  East  P.  C.  827;  3  Chitty  Cr.  Law 
997;  People  v.  Gates,  13  Wend.  (N. 
Y.)  311  (somewhat  extending  the 
rule  under  the  English  statute). 

« Shaffer  v.  State,  82  Ind.  221; 
but  compare,  Jones  v.  State,  50  Ind. 
473;  Wagoner  v.  State,  90  Ind.  504, 
507;  Lefler  v.  State,  153  Ind.  82,  54 
N.  E.  439;  in.  State  v.  Henn.  39 
Minn.  464,  40  N.  W.  564,  it  is  held 
that  if  the  false  token  is  a  writing 
it  need  not  be  such  as,  if  genuine, 
would  be  of  legal  validity.  For  ex- 
amples of  false  tokens,  see,  10  L.  R. 
A.  304,  note. 

"State  v,  Dowe,  27  Iowa  273,  1 
Am.  R.  271;  State  v.  Grant.  86  Iowa 
216,  222,  53  N.  W.  120;  Musgrave  v. 
State,   133   Ind.   297,  32   N.   E.   885; 


State  v.  Dixon,  101  N.  Car.  741-743, 
7  S.  E.  870;  Commonwealth  v.  Wal- 
lace, 114  Pa.  St.  405,  412,  6  Atl.  685, 
60  Am.  R.  353;  Blum  v.  State,  20 
Tex.  App.  578,  592,  54  Am.  R.  530; 
see  also,  Greenough,  In  re,  31  Vt. 
290;  Reg.  v.  Murphy,  10  Ir.  C.  L.  R. 
508,  13  Cox  Cr.  Cas.  298;  Rex  v. 
Barnard,  7  Car.  &  P.  784,  32  E.  C.  L. 
736;  Rex  v.  Story,  Russ.  &  Ry.  C.  C. 
80;  25  Am.  St.  379,  note. 

=»  State  v.  Whidbee,  124  N.  Car. 
796,  32  S.  E.  318;  State  v.  Matthews, 
121  N.  Car.  604,  28  S.  E.  469;  State 
V.  Magee,  11  Ind.  154;  Redmond  v. 
State,  35  Ohio  St.  83;  McKenzie  v. 
State,  11  Ark.  594;  People  v.  Blau- 
chard,  90  N.  Y.  314;  State  v.  Kings- 
ley,  108  Mo.  135,  18  S.  W.  994;  Com- 
monwealth V.  Warren,  94  Ky.  615, 
23  S.  W.  193. 

=»  Woodbury  v.  State.  69  Ala.  242, 
44  Am.  R.  515;  State  v.  Dowe,  27 
Iowa  275,  1  Am.  R.  271;  State  v. 
Webb,  26  Iowa  262;  People  v.  Jacobs, 
35  Mich.  36. 


2978.] 


FALSE    PRETENSES. 


248 


of  intention  as  to  the  future  is  usually  insufficient  to  constitute  a 
false  pretense  within  the  meaning  of  the  law,^°  and  expressions  of 
opinion  as  to  the  desirability  or  value  of  a  thing  are  not,  ordinarily, 
sufficient  to  constitute  false  pretenses.^^  But  under  a  statute  against 
fraudulently  obtaining  goods  under  false  color  or  pretense  of  carry- 
ing on  business  and  dealing  in  the  ordinary  course  of  trade,  a  false 
and  fraudulent  representation  by  the  purchaser  that  he  wants  them 
for  resale  in  the  ordinary  course  of  business  has  been  held  to  be  a 
representation  of  fact  within  the  statute  rather  than  a  mere  promise 
or  expression  of  intention  as  to  the  future.^^  And  although  a  false 
pretense  is  coupled  with  a  promise,  if  the  former  is  relied  on  and  is 
an  inducing  cause  it  is  generally  sufficient.^ ^  The  pretense  must  be 
false,  and  it  is  for  the  jury  to  determine  whether  the  representation 
is  false,^*  and,  in  certain  cases,  whether  it  is  a  continuing  one.^^  The 
pretense  may  consist  in  acts  and  conduct^^  as  well  as  in  words,  and 


^"Reg.  V.  Johnson,  2  Moo.  C.  C. 
254;  Glackan  v.  Commonwealth,  3 
Mets.  (Ky.)  232;  Commonwealth  v. 
Burdick,  2  Pa.  St.  163,  44  Am.  Dec. 
186;  Reg.  v.  Woodman,  14  Cox  Cr. 
Cas.  179;  State  v.  De  Lay,  93  Mo.  98, 
5  S.  W.  607. 

^'Commonwealth  v.  Wood,  142 
Mass.  459,  8  N.  E.  432;  Common- 
wealth V.  Stevenson,  127  Mass.  446, 
448;  State  v.  Daniel,  114  N.  Car. 
823,  19  S.  E.  100;  Rothschild  v. 
State,  13  Lea  (Tenn.)  294,  300;  Peo- 
ple v.  Gibbs,  98  Cal.  661,  33  Pac.  630; 
but  compare,  People  v.  Jordan,  66 
Cal.  10,  4  Pac.  773,  56  Am.  R.  73; 
People  V.  Peckens,  153  N.  Y.  576,  47 
N.  E.  883. 

^^Commonwealth  v.  Walker,  108 
Mass.  309,  312;  see  also.  Common- 
wealth V.  Drew,  153  Mass.  588,  593, 
27  N.  B.  593. 

^  Commonwealth  v.  Murphy,  96 
Ky.  28,  27  S.  W.  859;  People  v  Win- 
slow,  39  Mich.  507;  Reg.  v.  Bates,  3 
Cox  Cr.  Cas.  201;  Rex  v.  Asterley, 
7  Car.  &  P.  191,  32  E.  C.  L.  490;  see 
also.  State  v.  Gordon,  56  Kans.  64, 


67,  42  Pac.  346;    Donohoe  v.  State, 

59  Ark.  377,  27  S.  W.  226;  Thomas 
v.  State,  90  Ga.  437,  16  S.  E.  94; 
Commonwealth  v.  Wallace,  114  Pa. 
St.  413,  6  Atl.  685,  60  Am.  R.  353; 
Boscow  V.  State,  33  Tex.  Cr.  App. 
390,  26  S.  W.  625.  But  not,  it  seems, 
where  the  entire  reliance  is  on  the 
promise.  People  v.  Tompkins,  1 
Park.  Cr.  Cas.  (N.  Y.)  238;  Ranney 
V.  People,  22  N.  Y.  413. 

'*See,  Jackson  v.  People,  18  111. 
App.  513;  People  v.  Reynolds,  71 
Mich.  348,  38  N.  W.  923;  State  v. 
Hurley,  58  Kans.  668;  People  v. 
Cole,  65  Hun  (N.  Y.)  624,  20  N.  Y. 
S.  505,  aff'd  in,  137  N.  Y.  530,  33  N. 
E.  336. 

==^  Reg.  V.  Martin,  L.  R.,  1  C.  C.  56, 
10  Cox  Cr.  Cas.  383;  see  also,  Roths- 
child V.  State,  13  Lea  (Tenn.)  294. 

'"Musgrave  v.  State,  133  Ind.  297, 
32  N.  E.  885;  State  v.  Grant,  86  Iowa 
222,  53  N.  W.  120;  Commonwealth  v. 
Wallace,  114  Pa.  St.  412,  6  Atl.  685, 

60  Am.  R.  353;  Rex  v.  Story,  Russ. 
&  Ry.  C.  C.  80;  Reg.  y.  Bull,  13. 
Cox  Cr.  Cas.  608. 


249 


PRETENSE CALCULATED   TO    DECEIVE. 


[§    2979. 


it  may  be  made  to  the  agent  of  the  defrauded  party/ 
cases,  even  by  advertisement.^^ 


or,  m  some 


§  2979.     The  pretense — ^Whether  it  must  be  calculated  to  deceive. 

It  is  usually  said  that  the  pretense  must  be  such  as  is  calculated  to 
deceive/"  and  it  is  laid  down  by  some  of  tlie  courts  and  text-writers 
that  it  must  be  such  as  is  calculated  to  deceive  persons  of  ordinary 
prudence  and  discretion,  or  as  would  have  been  guarded  against  by 
such  persons.*"  But  the  better  rule  seems  to  be  that  this  is  not  an 
absolute  requisite  and  that  it  is  sufficient,  in  this  respect,  if  it  was 
calculated  to  and  did  impose  upon  and  deceive  the  person  to  whom  it 
was  made.  Thus,  in  a  recent  case,  overruling  several  earlier  decisions 
in  the  same  jurisdiction,  it  is  said:  "In  England,  and  many  of  the 
states,  the  rule  is  that  any  pretense  which  deceives  the  person  de- 
frauded is  sufficient  to  sustain  an  indictment,  although  it  would  not 
have  deceived  a  person  of  ordinary  prudence.*^ 


"^  State  v.  Turley,  142  Mo.  403,  44 
S.  W.  267;  Perry  v.  State,  (Tex.  Cr. 
App.)  46  S.  W.  816;  Commonwealth 
V.  Call,  21  Pick.  (Mass.)  509,  523, 
32  Am.  Dec.  284,  324;  Reg.  v.  God- 
frey, 7  Cox  Cr.  Cas.  392;  Reg.  v. 
Dent,  1  Car.  &  Kir.  249,  47  E.  C.  L. 
349. 

^"^  Jackson  v.  People,  126  111.  139, 
18  N.  E.  286;  State  v.  Sarony,  95  Mo. 
349,  8  S.  W.  407;  Reg.  v.  Cooper,  1 
Q.  B.  Div.  19,  13  Cox  Cr.  Cas.  123. 

^"Meek  v.  State,  117  Ala.  116,  23 
So.  155;  Watson  v.  People,  87  N.  Y. 
561,  566;  Bowen  v.  State,  9  Baxt. 
(Tenn.)  45,  40  Am.  R.  71;  Canter  v. 
State,  7  Lea  (Tenn.)  349;  State  v. 
Estes,  46  Me.  150;  Higler  v.  People, 
44  Mich.  299,  6  N.  W.  664;  Common- 
wealth V.  Moore,  99  Pa.  St.  570. 

*°  Commonwealth  v.  Grady,  13 
Bush  (Ky.)  285,  26  Am.  R.  192; 
Commonwealth  v.  Haughey,  3  Mete. 
(Ky.)  223;  People  v.  Williams,  4 
Hill  (N.  Y.)  9,  40  Am.  Dec.  258; 
State  V.  Young,  76  N.  Car.  258; 
State  V.  Simpson,  3  Hawks  (10  N. 
Car.)  620;  Underhill  Cr.  Ev.,  §  440. 


Several  Indiana  cases  to  the  same 
effect  are  overruled  in  the  decision 
referred  to  in  the  next  note. 

"Lefler  v.  State,  153  Ind.  82,  83, 
54  N.  E.  439;  2  Russell  Crimes  (9th 
Am.  ed.)  619-700;  Roscoe  Cr.  Ev. 
(7  Am.  ed.)  487,  488;  2  Bishop  Cr. 
Law,  §  433-436;  Reg.  v.  Woolley,  1 
Den.  C.  C.  559,  4  Cox  Cr.  Cas.  193,  3 
Car.  &  Kir.  98,  2  East  P.  C,  §  8,  pp. 
827,  831;  Reg.  v.  Jessop,  Dears  &  B. 
442,  7  Cox  Cr.  Cas.  399;  Reg.  v. 
Giles,  L.  &  C.  502,  10  Cox  Cr.  Cas. 
44;  Johnson  v.  State,  36  Ark.  242; 
State  V.  Fooks,  65  Iowa  196,  452,  21 
N.  W.  561,  773;  State  v.  Montgom- 
ery, 56  Iowa  195,  9  N.  W.  120;  Peo- 
ple V.  Pray,  1  Mich.  N.  P.  69;  State 
V.  Williams,  12  Mo.  App.  415;  Col- 
bert V.  State,  1  Tex.  App.  314;  Green- 
ough,  In  re,  31  Vt.  279-290;  Watson 
V.  People,  87  N.  Y.  561,  41  Am.  R. 
397;  People  v.  Oyer  &  Terminer,  83 
N.  Y.  436-449;  People  v.  Cole,  65 
Hun  (N.  Y.)  624,  20  N.  Y.  S.  505, 
aff'd  in,  137  N.  Y.  530,  33  N.  E.  336; 
People  V.  Rice,  128  N.  Y.  649.  29  N. 
E.  146;   State  v.  Mills,  17  Me.  211; 


2980.] 


FALSE    PRETENSES. 


250 


§  2980.  Evidence  to  prove  the  pretense. — Unless  otherwise  pro- 
vided by  statute*-  the  false  pretense  may  be  proved  in  the  same 
manner  as  any  other  fact  in  similar  cases.  The  burden  is  upon  the 
prosecution  to  show  its  falsity;"  but  this  may  be  done  by  circum- 
stantial evidence."  Admissions  of  the  defendant  are  competent  for 
this  purpose.*^  If  the  false  pretense  is  in  writing  the  writing  is  usu- 
ally the  best  evidence,  but  if  it  is  lost,  or  there  is  other  ground  for  the 
admission  of  secondary  evidence,  such  evidence  is  admissible  after 
laying  the  proper  foundation.**^  And  it  has  been  held  that  the  mere 
fact  that  there  is  a  writing,  embodying  some  of  the  false  representa- 
tions, will  not  exclude  parol  evidence  of  other  oral  representations 
not  contained  therein.*^  Illustrative  cases  showing  the  extent  to 
which  the  courts  go  in  admitting  evidence  to  show  the  falsity  of  the 
pretense  are  cited  below.-*^    The  defendant  may,  in  general,  introduce 


Smith  V.  State,  55  Miss.  513;  Watson 
V.  State,  16  Lea  (Tenn.)  604;  Bowen 
V.  State,  9  Baxt.  (Tenn.)  45,  40  Am. 
R.  71;  Commonwealth  v.  Henry,  22 
Pa.  St.  253;  Thomas  v.  People,  113 
111.  531;  Cowen  v.  People,  14  111. 
348;  Bartlett  v.  State,  28  Ohio  St. 
669,  670;  see  also,  16  Am.  L.  Reg. 
(N.  S.)  321,  325;  25  Am.  St.  380, 
note. 

^  See  as  to  California  statute.  Peo- 
ple V.  Martin,  102  Cal.  558,  36  Pac. 
952. 

*^  People  y.  Hong  Quin  Moon,  92 
Cal.  41,  27  Pac.  1096;  Babcock  v. 
People,  15  Hun  (N.  Y.)  347;  Morris 
V.  People,  4  Colo.  App.  136,  35  Pac. 
188;  Bowler  v.  State,  41  Miss.  570, 
576;  Brown  v.  State,  29  Tex.  503; 
but  see,  Reg.  v.  Sampson,  49  J.  P. 
807,   52   L.   T.   N.   S.   772. 

"  Commonwealth  v.  Hershell, 
Thach.  Cr.  Cas.  (Mass.)  70;  People 
T  Pinckney,  67  Hun  (N,  Y.)  428, 
22  N.  Y.  S.  118;  People  v.  Sully,  5 
Park.  Cr.  Cas.  (N.  Y.)  142,  169; 
Smith  V.  State,  55  Miss.  521;  State 
V.  Hulder,  78  Minn.  524,  81  N.  W. 
532. 

"State  V.  Lewis,  45  Iowa  20;  State 
V.  Gordon,  56  Kans.  64,  42  Pac.  346; 


Maddox  v.  State,  41  Tex.  205,  208; 
but  see  as  to  corroboration,  State  v. 
Penny,  70  Iowa  190,  30  N.  W.  561; 
see  also,  Sherman  v.  People,  13  Hun 
(N.  Y.)  575. 

"  Commonwealth  v.  Jeffries,  7 
Allen  (Mass.)  561,  83  Am.  Dec.  712; 
Rex  V.  Chadwick,  6  Car.  &  P.  181. 
25  E.  C.  L.  244;  see  also,  State  v. 
Penny,  70  Iowa  191,  30  N,  W.  561, 
(holding  that  no  sufficient  founda- 
tion had  been  laid). 

*'Reg.  V.  Adamson,  1  Car.  &  Kir. 
192,  47  E.  C.  L.  192;  see  also,  Jack- 
son V.  People,  126  111.  139,  18  N.  E. 
286;  Commonwealth  v.  Alsop,  1 
Brews.  (Pa.)  328,  331;  for  letters 
and  other  documents  held  admis- 
sible see.  Territory  v.  Ely,  6  Dak. 
128,  50  N.  W.  623;  Rafferty  v.  State, 
91  Tenn.  655,  16  S.  W.  728;  Jackson 
V.  People,  126  111.  139,  18  N.  E.  286; 
Commonwealth  v.  Blood,  141  Mass. 
571,  6  N.  E.  769;  Trogdon  v.  Com- 
monwealth, 31  Gratt.  (Va.)  862, 
869;  but  compare,  Jones  v.  State,  8 
Tex.  App.  648,  652. 

^*  Commonwealth  v.  Lundberg,  18 
Phila.  (Pa.)  482;  Abbott  v.  People, 
15  Hun  (N.  Y.)  437;  People  v. 
Wieger,  100  Cal.   357,  34  Pac.  826; 


251  RELIANCE  ON  PRETENSE.  [§  2981. 

any  proper  evidence  to  show  that  he  did  not  make  the  alleged  false 
representation,  or  that  it  is  true.*'*  It  is  essential,  as  a  rule  at  least, 
that  the  defendant  should  have  known  of  the  falsity  of  the  pretense,°° 
but  this,  too  may  be  shown  by  circumstantial  evidence,  and  the  de- 
fendant's admissions  or  declarations  either  before  or  after  the  offense 
are  usually  competent  for  this  purpose.^^  Indeed,  it  is  sometimes 
said  that  knowledge  of  the  false  pretense  will  be  presumed  under 
certain  circumstances.  In  a  recent  case,  on  a  trial  for  obtaining 
goods  under  false  pretenses,  a  paper  taken  from  defendant's  person 
was  held  admissible  in  evidence  both  for  the  purpose  of  showing 
guilty  knowledge  and  for  the  purpose  of  showing  that  the  defendant 
had  devised  a  scheme  to  obtain  goods  whenever  and  from  whomsoever 
he  could,  where  the  paper  was  in  his  own  handwriting,  and  was  ad- 
dressed "to  all  whom  it  may  concern,"  and  contained  the  same  false 
statements  he  was  charged  with  in  the  indictment,  though  it  was  not 
used  in  obtaining  the  goods  in  the  particular  case,  and  was  dated 
subsequent  thereto. ^- 

§  2981.  Reliance  on  pretense. — The  false  pretense  alleged  mun^t 
have  been  relied  on  by  the  defrauded  party  and  must  have  been  an 

Jordan    v.    Osgood,    109    Mass.    457,        ==  State  v.  Haines,  23  S.  Car.  170; 

464,  12  Am.  R.  731;  Smith  v.  People,  Jackson   v.   People,   126   111.   139,   18 

47  N.  Y.  303.  N.  E.  286;  Pinter,  In  re.  66  L.  T.  N. 

^»See,  Rainforth  v.  People,  61  111.  S.  324;    Carnell  v.  State.  8.5  Md.  1, 

365;    State  v.   Lurch,  12  Ore.  95,  6  36  Atl.   117.     In  the  course  of  the 

Pac.  405.  opinion  the  court  said:    "The  repre- 

="  People  V.  Behee,  90  Mich.  356,  sentation  made  in  the  letter,  being, 
51  N.  "W.  515;  Johnson  v.  State,  75  according  to  its  purport,  subsequent 
Ind.  553,  556;  State  v.  Bradley,  68  in  date  to  a  similar  statement  set 
Mo.  140,  142;  Sharp  v.  State,  53  N.  forth  in  the  bill  of  particulars,  may 
J.  L.  511,  21  Atl.  1026;  State  v.  not  prove  that  the  latter  was  in 
Hurst,  11  W.  Va.  54,  59.  It  has  been  fact  made;  yet  the  letter  was  admis- 
held  no  offense  where  it  appeared  sible  for  the  purpose  of  showing 
that  the  defendant  in  good  faith  guilty  knowledge.  *  *  *  But,  in 
believed  the  representation  true,  addition  to  this,  the  letter  was  ad- 
State  v.  Alphin,  84  N.  Car.  745;  missible  under  the  exception  to  the 
Ketchell  v.  State,  36  Neb.  324,  54  N.  general  rule  which  is  well  recog- 
W.  564.  nized,   namely,   for   the   purpose   of 

"  Fowler   v.   People,   18   How.   Pr.  showing  that  the  traverser  had  de- 

(N.    Y.)    493,    499;    State   v.    Long,  vised    a    scheme    to    obtain    goods 

103  Ind.  481,  3  N.  E.  169;   see  also,  wherever  and  from  whomsoever  he 

People  V.  Hamberg,  84  Cal.  468.  473,  could    by   falsely   representing   that 

24  Pac.  298;  People  v.  Pinckney.  67  he    had    money    on   deposit    in    the 

Hun  (N.  Y.)  428,  22  N.  Y.  S.  118.  People's  Bank  of  Hagerstown." 


2981.] 


FALSE   PRETENSES. 


252 


inducing  cause  of  his  parting  with  his  property."  The  evidence,  it 
has  been  said  must  show  beyond  a  reasonable  doubt  that  he  believed 
that  the  representations  were  true,  and  that,  relying  and  acting  upon 
them,  he  parted  with  his  property  upon  the  faith  of  such  representa- 
tions.'** But  they  need  not  be  shown  to  have  been  the  sole,  and  ex- 
elusive  cause  or  inducement.  He  may  have  been  influenced  by  con- 
sideration of  friendship,  or  the  desire  of  gain,  or  other  causes  as  well 
as  the  false  pretenses  and  whether  he  was  so  influenced,  and  by  what 
and  to  what  extent,  are  questions  for  the  jury.'''*  It  has  been  held 
that  the  prosecuting  witness  may  testify  directly  that  he  believed  in 
the  false  pretenses;^®  but  even  though  he  does  not  testify  upon  the 
subject,®'^  it  may  be  inferred  from  the  circumstances  in  evidence 
that  he  was  induced  to  part  with  his  property  by  the  false  pretenses 
of  the  defendant.^ ^ 


"Meek  V.  State,  117  Ala.  116,  23 
So.  155;  Morgan  v.  State,  42  Ark. 
131,  138,  48  Am.  R.  55;  State  v. 
Connor,  110  Ind.  469,  471,  11  N.  E. 
454;  Ladd  v.  State,  17  Fla.  215,  219; 
State  V.  Stone,  75  Iowa  215,  39  N. 
W.  275;  State  v.  Moore,  111  N.  Car. 
669,  672,  16  S.  E.  384;  State  v. 
Bloodsworth,  25  Ore.  83,  34  Pac. 
1023;  Bowler  v.  State,  41  Miss.  570, 
578;  Reg.  v.  Gemnell,  26  U.  C.  Q.  B. 
312;  Reg.  v.  Jones,  1  Cox  Cr.  Cas. 
105;  Reg.  v.  Mills,  7  Cox  Cr.  Cas. 
263;  State  v.  Crane,  54  Kans.  384, 
38  Pac.  270;  2  Bishop  New  Cr.  Law, 
§  159. 

"Underbill  Cr.  Ev.,  §,  442;  Trog- 
don  V.  Commonwealth,  31  Gratt. 
(Va.)  862,  884;  Reg.  v.  Mills,  7  Cox 
Cr.  Cas.  263. 

'=•  State  V.  Thatcher,  35  N.  J.  L. 
445;  Therasson  v.  People,  20  Hun 
(N.  Y.)  55,  67;  Van  Buren  v.  Peo- 
ple, 7  Colo.  App.  136,  42  Pac.  599; 
People  V.  Haynes,  14  Wend.  (N.  Y.) 
546;  People  v.  Baker,  96  N.  Y.  340, 
348;  Berry  v.  State,  97  Ga.  202,  23 
S.  E.  833;  Skiff  v.  People,  2  Park. 
Cr.  Cas.  (N.  Y.)   139;   State  v.  Wil- 


liams, 103  Ind.  235,  237,  2  N.  E.  585; 
Woodbury  v.  State,  69  Ala.  242,  246; 
Wax  V.  State,  43  Neb.  18,  61  N.  W. 
117;  State  v.  Dunlap,  24  Me.  77; 
Commonwealth  v.  Stevenson,  127 
Mass.  446;  Fay  v.  Commonwealth, 
28  Gratt.  (Va.)  912;  Cowen  v.  Peo- 
ple, 14  111.  348;  Britt  v.  State,  9 
Humph.  (Tenn.)  30;  State  v.  Fooks, 
65  Iowa  196,  452,  21  N.  W.  561,  773; 
Snyder,  In  re,  17  Kans.  542;  State 
V.  Cowdin,  28  Kans.  270;  State  v. 
Tessier,  32  La.  Ann.  1227;  Smith  r. 
State,  55  Miss.  513;  People  v.  Gibbs, 
98  Cal.  662,  663,  33  Pac.  630;  Dono- 
hoe  v.  State,  59  Ark.  375,  27  S.  W. 
226;  but  see,  Bryant  v.  Common- 
wealth, 104,  Ky.  593,  47  S.  W.  578. 

^People  V.  Herrick,  13  Wend.  (N. 
Y.)  87;  Snyder,  In  re,  17  Kans.  542. 

"People  V.  Hong  Quin  Moon,  92 
Cal.  42,  27  Pac.  1096;  State  v.  That- 
cher, 35  N.  J.  L.  449. 

"**  Commonwealth  v.  Coe,  115  Mass. 
501;  Therasson  v.  People,  82  N.  Y. 
238;  Reg.  v.  Burton,  16  Cox  Cr.  Cas. 
62;  Jones  v.  United  States,  5  Cranch 
(U.  S.)  647,  652. 


253  DEFENSES.  [§   2982. 

§  2982.  Defenses. — A  mere  intention  to  repay  money  obtained  by 
false  pretenses,  or  the  ability  of  the  defendant  to  repay  it,  is  not  a 
good  defense;'^  and  it  has  been  held  that  it  is  no  defense  that  the 
party  defrauded  had  himself  misrepresented  the  value  of  the  goods 
obtained  by  the  defendant  by  false  pretense,^"  or,  in  other  words, 
that  the  illegal  purpose  of  the  person  from  whom  money  or  property 
is  obtained  by  false  pretenses  is  no  defense  to  an  indictment  against 
the  person  who  so  obtained  it."^  But  upon  this  last  proposition  the 
authorities  are  conflicting  and  the  contrary  doctrine  is  maintained 
in  several  apparently  well  considered  cases.^^  The  fact  that  the  of- 
fense was  committed  for  a  purposed  meritorious  object  or  for  the 
benefit  of  another,  as  for  instance,  where  parties  conspired  to  obtain 
money  by  false  pretenses  from  an  insurance  company  for  the  benefit 
of  the  insured  rather  than  for  tliemselvcs,  is  no  defense.''^  The  de- 
fendant may,  however,  introduce  proper  evidence  to  repel  or  rebut 
the  inference  of  an  intent  on  his  part  to  defraud.  It  has  been  held 
that  he  may  do  so  by  his  own  direct  testimony,''*  or  he  may  do  so  by 
other  legitimate  evidence  tending  to  show  that  there  was  no  false 
pretense  on  his  part  or  that  no  fraud  was  designed  or  could  have  re- 
sulted.^^    So,  in  a  complicated  transaction,  he  may  generally  show  the 

"^Buntain  v.   State,  15  Tex.  App.  66;   Cunningham  v.  State,  61  N.  J. 

515;     Commonwealth     v.     Coe,     115  L.  67,  38  Atl.  847;   Reg.  v.  Hudson, 

Mass.  481;  see  also.  Territory  v.  Ely,  8  Cox  Cr.  Cas.  305,  6  Jur.  N.  S.  566. 

6  Dak.  128,  50  N.  W.  623;  People  v.  «=  People   v.    Stetson,   4   Barb.    (N. 

Bryant,    119   Cal.   595,   51    Pac.   960,  Y.)   151;  McCord  v.  People,  46  N.  Y. 

holding    the     fact    that     defrauded  470     (with    a    vigorous     dissenting 

party  might  ultimately  have  recov-  opinion,  however,  by  Peckham,  J.); 

ered  no  defense.    Nor  does  an  offer  State  v.  Crowley,  41  Wis.  271. 

to    refund    or    even    a    restoration  "^^  Musgrave  v.  State,  133  Ind.  297, 

purge  the  offense.   Donohoe  v.  State,  32  N.  E.  885;  People  v.  Lennox,  106 

59  Ark.  378,  27  S.  W.  226;   Carlisle  Mich.   625,   64   N.  W.  488;   see  also, 

V.  State,  77  Ala.  71;  People  v.  Oscar,  Willis   v.   People,   19   Hun    (N.   Y.) 

105  Mich.  704,  63  N.  W.  971.  84;    but  see,  Reg.  v.  Garrett,  6  Cox 

*"  Commonwealth     v.     Morrill,     8  Cr.     Cas.     260;     Commonwealth    v. 

Cush.    (Mass.)    571.  Langley,  169  Mass.  89,  47  N.  E.  511; 

"Cummins,    In    re,    16    Colo.    451,  Bracey  v.   State.   64  Miss.  26,  8  So. 

27  Pac.  887,  13  L.  R.  A.  752;    Com-  165. 

mon wealth  v.  Henry,  22  Pa.  253;    2  **  Babcock  v.  People,  15  Hun    (N. 

Bishop  Cr.  Law  (7th  ed.),  §  469;  see  Y.)    347,  355. 

also,  People  v.  Martin,  102  Cal.  558,  "^  See,  People  v.  Getchell,  6  Mich. 

36   Pac.  952;    People   v.   Watson,   75  496;  it  is  held  in  many  jurisdictions 

Mich.  582,  42  N.  W.  1005;   Common-  that  if  the  other  party  is  merely  in- 

wealth  V.  O'Brien,  172  Mass.  248,  52  duced  by  a  false  pretense  to  pay  a 

N.  E.  77;  easily  v.  State,  32  Ind.  62,  debt  or   perform   a  duty   which    he 


§  2983.]  FALSE  PRETENSES.  254 

course  of  dealing  between  himself  and  the  prosecuting  witness  f^  but 
the  evidence  must  be  relevant  and  material,*'^  It  has  also  been  held 
on  the  trial  of  an  indictment  for  obtaining  goods  by  false  representa- 
tions, where  the  terms  of  a  chattel  mortgage  were  introduced  in  evi- 
dence against  the  defendant,  that  parol  evidence  was  admissible  to 
show  his  relationship  to  the  mortgage  transaction  and  that  he  acted 
under  a  misapprehension.^®  So,  it  has  been  held  that  the  defendant 
may  introduce  evidence  of  his  character  and  reputation  with  respect 
to  the  traits  involved,  but  not  specific  instances  and  their  details;^' 
and  evidence  of  his  good  financial  standing  at  the  time  has  been  held 
inadmissible.'** 

§  2983.  Declarations  and  admissions — Co-conspirators. — Declara- 
tions and  admissions  made  by  the  defendant,  relating  to  the  transac- 
tion charged,  are  admissible  against  him  as  in  other  cases.'^^  So, 
where  the  defendant,  when  arraigned  upon  an  indictment  for  obtain- 
ing money  by  false  pretenses  that  he  was  a  man  of  means,  obtained 
counsel  at  the  expense  of  the  state  by  pleading  his  poverty  to  the  court, 
his  statement  thus  made  was  held  admissible  to  prove  the  falsity  of 
the  pretense  made  to  his  victim.''^  So,  too,  the  acts  and  declarations 
of  his  co-conspirator  relating  to  the  same  crime,  and  in  furtherance 
thereof,  though  not   made  in  his  presence,  are  admissible   against 

owed  to  the  defendant  this  will  gen-  State,  86  Ga.  197,  12  S.  E.  746;  Com- 

erally  negative  an  intent  to  defraud  monwealth  v.  Howe,  132  Mass.  250; 

and   constitute   a   defense.     Rex.  v.  Van  Buren  v.  People,  7  Colo.  App. 

Williams,  7  Car.  &  P.  354,  32  E.  C.  136,  42  Pac.  599. 

L.  540;   Commonwealth  v.  McDuffy,  -^  State  v.  Garris,  98  N.  Car.  733, 

126   Mass.   467;    People  v.    Thomas,  4  S.  E.  633. 

3  Hill  (N.  Y.)  169;  Jamison  v.  State,  ""State  v.   Dexter,    115    Iowa    678, 
37  Ark.  445,  40  Am.  R.  103;  State  v.  87  N.  W.  417;  see  also.  State  v.  Pen- 
Hurst,   11   W.  Va.   54,   71;    but  see,  ley,  27  Conn.  587. 
People  V.   Smith,   5   Park.   Cr.   Cas.  '"State  v.   Penley,   27   Conn.   587; 
(N.     Y.)     490;     Commonwealth     v.  but  see  post,  §  2984. 
Leisy,  1  Pa.  Co.  Ct.  R.  50.  "State   v.    Long,    103   Ind.   481,   3 

""  State  V.  Rivers,  58  Iowa  102,  108,  N.  E.  169;  Commonwealth  v.  Castles, 

12  N.  W.  117,  43  Am.  R.  112;  Lutton  9   Gray    (Mass.)    121,   69   Am.   Dec. 

V.  State,  14  Tex.  App.  518;  but  see,  278;  State  v.  Wilkerson,  72  N.  Car. 

People  V.  Genung,  11  Wend.  (N.  Y.)  376;    see  also.   State  v.   Wilson,   72 

18,  25  Am.  Dec.  594,  as  to  books  of  Minn.  522,  75  N.  W.  715;   People  v. 

account.  Shelters,  99  Mich.  333,  58  N.  W.  362. 

«'  State   V.    Wilson,    143    Mo.    334,  "  State  v.  Fooks,  65  Iowa  196,  452, 

44  S.  W.  722;  People  v.  Lennox,  106  21  N.  W.  561,  773. 
Mich.  625,  64  N.  W.  488;    Culver  v. 


255 


SUFFICIENCY    OF    EVIDENCE — VARIANCE. 


[§    2984. 


him,'^  It  is  held,  however,  that  such  evidence  is  not  sufficient  to 
convict,  unless  corroborated,'*  and  to  admit  the  acts  and  declarations 
of  those  claimed  to  be  co-conspirators  the  fact  of  combination  or  con- 
spiracy should  be  shown,  "^ 

§  2984.  Sufliciency  of  evidence — ^Variance — Miscellaneous. — The 
evidence  must  establish  a  false  representation  or  pretense  substantially 
as  charged  in  the  indictment.''®  But,  although  the  defendant  is 
charged  with  making  a  number  of  false  pretenses  in  accomplishing 
the  one  fraudulent  purpose,  it  is  not  necessary  that  all  of  them  should 
be  proved.''^  So,  if  the  substance  of  the  false  representation  is  proved, 
it  is  not  a  fatal  variance  that  it  is  not  proved  in  the  exact  words.'"" 
But  a  substantial  variance  in  this  respect  or  in  any  other  material 
respect  may  be  fatal. ''^  The  place  where  the  owner  parts  with  his 
property  and  the  crime  is  consummated  generally  determines  the 
venue.  This  is  an  important  matter  in  many  cases,  as  where  the 
accused  has  written  to  the  owner  of  property  in  another  jurisdiction 
and  it  is  sent  to  the  former  upon  the  faith  of  the  false  representations 


"  State  V.  Montgomery,  56  Iowa 
195,  9  N.  W.  120;  see  also,  State  v 
Davis,  56  Iowa  202,  9  N.  W.  123; 
Commonwealth  v.  Clancy,  (Mass.) 
72  N.  E.  842. 

'♦  State  V.  Penny,  70  Iowa  190,  30 
N.  W.  561. 

"Jones  V.  Commonwealth,  2  Duv. 
(Ky.)    554. 

"O'Connor  v.  State,  30  Ala.  9; 
Commonwealth  v.  Pierce,  130  Mass. 
31;  Commonwealth  v.  Davidson,  1 
Cush.  (Mass.)  33;  Todd  v.  State,  31 
Ind.  514;  Rex  v.  Plestow,  1  Campb. 
494;  but  see.  People  v.  Herrick,  13 
Wend.  (N.  Y.)  87. 

"  People  V.  Wakely,  62  Mich.  297, 
28  N.  W.  871;  Todd  v.  State,  31  Ind. 
514;  State  v.  Dunlap,  24  Me.  77; 
Cowen  V.  People,  14  111.  348;  Com- 
monwealth V.  Morrill,  8  Cush. 
(Mass.)  571;  People  v.  Blanchard, 
90  N.  Y.  314;  State  v.  Vorback,  66 
Mo.  168. 

"  State  V.  Vanderbilt,  27  N.  J.  L. 


328;     Commonwealth    v.    Coe,    115 

Mass.  481. 

*  See,  Commonwealth  v.  Howe, 
132  Mass.  250;  Commonwealth  v. 
Jeffries,  7  Allen  (Mass.)  548,  83  Am. 
Dec.  712;  Baker  v.  State,  31  Ohio  St. 
314;  Prehn  v.  State,  22  Neb.  673, 
36  N.  W.  295;  People  v.  Reed.  70 
Cal.  529,  11  Pac.  676;  Kirtley  v. 
State,  38  Ark.  543;  State  v.  Horn,  93 
Mo.  190,  6  S.  W.  96.  It  must  in  some 
jurisdictions,  at  least,  appear  be- 
yond a  reasonable  doubt  that  the 
property  obtained  by  the  false  pre- 
tenses had  some  value.  State  v. 
Lewis,  26  Kans.  123;  Morgan  v. 
State,  42  Ark.  131 ;  State  v.  Shaeffer, 
89  Mo.  271;  1  S.  W.  293;  Rosales  v. 
State,  22  Tex.  App.  673,  3  S.  W.  344. 
And  that  the  other  party  was  pre- 
judiced or  injured.  Snyder,  In  re, 
17  Kans.  542;  People  v.  Herrick, 
13  Wend.  (N.  Y.)  87;  but  see,  Sim- 
mons v.  People,  88  111.  App.  334; 
Commonwealth  v.  Harley,  7  Mete. 
(Mass.)  462. 


§  2984.]  FALSE  PRETENSES.  256 

contained  in  the  letter.  It  must,  therefore,  generally  be  proved  where 
the  false  pretenses  were  acted  upon  and  the  property  obtained-^"  Where 
one  procures  money  or  goods  from  another  knowing  that  the  latter 
believes  him  to  be  solvent  and  financially  responsible,  the  insolvency 
of  the  former  may  well  be  considered  as  showing,  with  the  other 
circumstances,  an  intent  to  defraud,  and  this  is  certainly  true 
where  he  represents  that  he  is  solvent.  Hence,  evidence  to  show  the 
solvency  or  insolvency  of  the  defendant  has  often  been  admitted  in 
prosecutions  for  false  pretenses."  In  a  recent  case,  which  was  a 
prosecution  for  larceny  by  obtaining  money  from  different  persons 
at  different  times  by  false  pretenses  in  the  sales  of  business  establish- 
ments, there  being  evidence  of  a  conspiracy  in  pursuance  of  which 
defendants  had  acted  throughout  the  transactions,  it  was  held  that 
the  jury,  if  they  found  there  was  such  a  conspiracy,  might  consider 
the  acts  of  either  or  both  of  defendants  in  any  of  the  transactions,  at 
least  on  the  question  of  the  knowledge  of  each  of  the  falsity  of  the 
representations  made,  and  of  the  intent  of  each  to  cheat  each  pur- 
chaser by  means  of  them;  and  that  they  might  also  consider  the  fact 
that  the  volume  of  business  was  much  less  immediately  after  the  sale 
than  it  had  been  represented  to  be  before  the  sale.^^  In  a  recent  case 
in  Winconsin  it  is  held  that  the  evidence  must  show  the  obtaining  of 
the  very  property  alleged  in  the  indictment  or  information,  or  some 
part  of  it,  but  that  proof  of  obtaining  part  of  the  money  described  is 
sufficient.^3    Where  the  defendant,  in  a  horse  trade,  agreed  to  pay 

»» State   V.    Shaeffer,    89   Mo.    271,  monwealth  v.  Drew,  153  Mass.  588, 

278,   1   S.   W.   393;    State  v.   House,  27  N.  E.  593;    Reg.  v.  Howarth,  11 

55  Iowa  466,  472,  8  N.  W.  307;  Nor-  Cox  Cr.  Cas.  588;  see  also,  State  v. 

ris  V.  State,'  25  Ohio  St.  217;   Com-  Call,  48  N.  H.  126;  State  v.  Long,  103 

monwealth    v.    Van     Tuyl,    1    Mete.  Ind.  481,  3  N.  E.  169;  State  v.  Fooks, 

(Ky.)   1;   People  v.  Adams,  3  Denio  65  Iowa  196,  452,  21  N.  W.  561,  773; 

(N.  Y.)  190;  Commonwealth  v.  Kar-  State  v.  McCormlck,  57  Kans.  440, 

pouski,   15  Pa.  Co.   Ct.  R.  280;    see  46  Pac.  777;    as  to  how  insolvency 

also,  Stewart  v.  Jessup,  51  Ind.  413.  may  be  proved,  see.  Commonwealth 

The  printed  matter  at  the  head  of  v.  Jeffries,  7  Allen    (Mass.)    548,  83 

the  letter  may  be  relevant  as  indi-  Am.    Dec.    712;    Hathcock   v.    State 

eating  the  false  character  which  the  88  Ga.  91,  13  S.  E.  959. 
accused  has  assumed  in  order  to  ef-        ^^  Commonwealth        v.        Clancy 

feet  his   criminal    designs.      Taylor  (Mass.)    72   N.   E.    842.     The   court 

V.  Commonwealth,  94  Ky.  281,  284,  held  that  the  latter  fact  was  rele 

22  S.  W.  217.  vant  upon  the  question  of  the  fal 

"State  V.  Hill,  72  Me.  238;  Wood  sity  of  the  representations. 
V.   People,   53  N.   Y.   511;    Brosn  v.         « Bates  v.  State,  (Wis.)  103  N.  W 

State,    (Tex.)   38  S.  W.  1008;   Com-  251;   see  also,  Schleisinger  v.  State 


257 


SUFFICIENCY    OF    EVIDENCE — VARIANCE. 


[§    2984. 


the  prosecuting  witness  a  certain  sum  and  for  that  purpose  handed 
him  a  confederate  bill  for  a  larger  sum  and  asked  for  the  change, 
and  the  prosecuting  witness  received  the  confederate  bill,  believing 
it  United  States  currency,  the  defendant  was  held  guilty  under  the 
Kentucky  statute.**  So,  where  the  defendant,  by  falsely  personating 
another,  obtained  a  check  payable  to  the  latter,  it  was  held  that  a  con- 
viction mifjht  be  had  under  the  Vermont  statute.*^ 


11  Ohio  St.  669;  Baker  v.  State,  31 
Ohio  St.  314;  Commonwealth  v. 
Howe,  132  Mass.  250;  Common- 
wealth V.  Wood,  142  Mass.  459,  8 
N.  E.  432;  People  v.  Haynes,  14 
Wend.  (N.  Y.)  546,  28  Am.  Dec.  530. 
"  Commonwealth  v.  Beckett, 
(Ky.)  84  S.  W.  758.  The  court  said 
that  the  bill  was  a  false  token  and 
that  it  was  immaterial  whether  it 


was  calculated  to  deceive  ordinarily 
careful  and  prudent  persons  or  not, 
as  the  statute  was  designed  to  pro- 
tect the  unwary  and  foolish  as  well 
as  the  wary  and  prudent. 

«^  State  V.  Marshall,  (Vt.)  59  Atl. 
916;  see  also,  2  Bishop  New  Cr.  Law 
152;  Commonwealth  v.  Drew,  19 
Pick.  (Mass.)  179. 


Vol.  4  Elliott  Ev.— 17 


CHAPTEE  CXLIII. 


FORGERY. 


Sec. 

2985.  Definition  —  Essential        ele- 

ments. 

2986.  Presumptions. 

2987.  Burden  of  proof. 

2988.  Question  of  law  or  fact. 

2989.  Who  competent  to  testify. 

2990.  Proof  of  intent  and  knowledge. 

2991.  Proof  of  handwriting. 

2992.  Production    of   forged    instru- 

ment. 


Sec. 

2993.  Secondary  evidence  of  forged 

instrument. 

2994.  Other  forged  instruments. 

2995.  Evidence  in  general. 

2996.  Evidence  in  defense. 

2997.  Weight  and  suflBciency  of  evi- 

dence. 

2998.  Variance. 


§  2985.  Definition — Essential  eleni€nts. — Forgery  may  be  defined 
as  the  falsely  making  or  materially  altering  of  a  writing,  with  intent 
to  defraud  where  such  writing,  if  genuine,  would  apparently  be  of 
legal  efficacy  or  the  foundation  of  legal  liability.  In  other  words, 
it  is  the  fraudulent  making  or  alteration  of  a  writing  to  the  prejudice 
of  another  man's  right.^  The  essential  elements  of  the  crime,  in 
general,  are  the  false  making  or  alteration  of  some  writing,  guilty 
knowledge  and  intent,  and  the  apparent  legal  efficacy  of  the  instru- 
ment, or,  in  other  words,  its  capacity  or  apparent  capacity  to  effect 
a  fraud  and  work  injury  to  some  one.^ 

§  2986.  Presumptions. — Among  the  presumptions  that  have  been 
held  to  arise  in  cases  of  forgery  are  the  following:  A  presumption 
arises  that  one  forged  or  procured  an  order  to  be  forged  who  has  such 
forged  order  in  his  possession  if  it  is  drawn  in  his  favor. ^     So,  it  has 


^See,  People  v.  Fitch,  1  Wend. 
(N.  Y.)  198,  19  Am.  Dec.  477,  where 
definitions  by  a  number  of  jurists 
and  writers  are  given.  See  also, 
United  States  v.  Long,  30  Fed.  678; 
State  V.  Rose,  70  Minn.  403,  73  N.  W. 
177;  Arnold  v.  Cost,  3  Gill  &  J. 
(Md.)    219,    22    Am.    Dec.    302,    and 


note;  Black  L.  Diet.;  note  in  8 
Am.  Cr.  273;  Hughes  Cr.  L.  &  Proc, 
§  896,  note  in  10  L.  R.  A.  779. 

''See,  22  Am.  Dec.  306,  note,  and, 
8  Am.  St.  466,  note. 

^Hobbs  V.  State,  75  Ala.  1;  State 
v.  Britt,  14  N.  Car.  122. 


258 


259  PRESUMPTIONS.  [§   2086. 

frequently  been  held  that  a  presumption  or  inference  of  guilt  may  arise 
from  the  unexplained  possession  of  a  forged  writing  by  one  who  is 
a  beneficiary.*  But  if  one  is  not  necessarily  the  beneficiary  this  pre- 
sumption may  not  arise.  Thus,  it  is  held  that  a  presumption  does 
not  arise  that  one  made  a  forged  indorsement  on  an  instrument  upon 
proof  that  he  had  it  in  his  possession,  and  uttered  and  published  it 
as  true,  where  such  indorsement  was  the  blank  indorsement  in  the 
name  of  the  payee  on  such  instrument.^  But  it  has  been  held  that 
the  possession  of  the  forged  instrument,  and  claim  of  title  thereunder, 
is  evidence,  and  raises  a  presumption  that  the  defendant  was  the 
forger.*'  Mere  proof  of  possession  of  forged  paper,  however,  does  not 
create  or  raise  a  conclusive  presumption  of  a  fraudulent  intent.''  If  a 
paper  is  shown  to  be  a  forgery,  and  has  passed  through  the  defendant's 
hands  and  he  uttered  it  as  true,  there  may  be  a  presumption  of  knowl- 
edge on  his  part  that  it  was  forged.^  A  presumption  of  intent  may 
arise  from  the  circumstances  of  the  accused  doing  an  act  which  he 
knows  the  law  forbids  as  making  a  false  entry  to  conceal  a  previous 
defalcation.^  It  has  been  held  that  a  presumption  that  a  forgery  was 
committed  in  a  certain  county  does  not  necessarily  arise  from  the 
fact  that  the  instrument  was  uttered  in  that  county.^"  But  it  is  gen- 
erally held  to  be  presumptive  evidence,^^  or  at  least  to  justify  the  in- 
ference that  the  forgery  was  committed  in  that  county.^^  The  passing 
of  a  forged  instrument  does  not  necessarily  raise  the  presumption 
that  the  person  passing  the  same  forged  an  indorsement  appearing 
thereon. ^^  And  there  is  no  presumption  of  guilt  from  the  mere  fact 
that  the  party  charged  with  a  crime  had  the  ability  to  commit  it.^* 
But  the  fact  that  the  seal  upon  an  instrument  is  false  has  been  held 
to  raise  a  presumption  that  the  signature  is  forged. ^^ 

*  Barnes    v.    Commonwealth,     101  '°  Commonwealth  v.  Parmenter,  5 

Ky.    556,    41    S.    W.    772;    Common-  Pick.   (Mass.)  279. 

wealth  V.   Talbot,   2   Allen    (Mass.)  "State  v.   Poindexter,   23  W.   Va. 

161;   Williams  v.  State,  126  Ala.  50,  805. 

28  So.  632;   State  v.  Carter,  129  N.  "State   v.    Morgan,   2    Dev.   &   B. 

Car.  560.  40  S.  E.  11.  L.   (N.  Car.)   348;   Bland  v.  People, 

"Miller  v.  State,  51  Ind.  405.  4     111.  364;  State  v.  Morgan,  35  La. 

« State   v.    Pyscher,    179    Mo.    140,  Ann.   293. 

77  S.  W.  836.  "  Miller  v.  State,  51  Ind.  405. 

'  Pox  v.  People,  95  111.  71.  "  State  v.  Hopkins,  50  Vt.  316. 

"  Hagar  v.  State.  71  Ga.  164.  "  People  v.  Marion,  29  Mich.  31. 

•Phelps  v.   People,   72    N.  Y.   365, 
6  Hun   (N.  Y.)   401,  428. 


\%  2987,  2988.]  forgery. 


2  GO 


§2987.  Burden  of  proof. — The  burden  of  proof  is  generally  on 
the  prosecution  to  establish  three  facts ;  namely,  that  a  false  writing 
has  been  made,  that  it  was  apparently  capable  of  accomplishing  a 
fraudulent  purpose,  and  that  there  was  a  fraudulent  intent.^*^  The 
mere  fact  of  signing  another's  name  does  not,  it  has  been  held,  raise 
a  presumption  that  it  was  fraudulent,  and  when  the  defendant  admits 
the  making  of  the  signature,  but  claims  that  he  had  authority  to  so 
sign,  the  burden  is  on  the  state  to  prove  that  it  was  without  author- 
ity.'^ If  the  indictment  describes  the  writing  with  minuteness  the 
burden  of  proof  is  on  the  prosecution  to  establish  the  writing  some- 
what strictly  as  pleaded  in  the  indictment."  In  prosecutions  for 
forgery,  as  in  other  criminal  cases,  the  burden  is  on  the  prosecution 
to  establish  the  guilt  of  the  accused  beyond  a  reasonable  doubt. 

§2988.  Questions  of  law  or  fact.— Whether  an  instrument  im- 
ports a  pecuniary  obligation,  so  as  to  be  the  subject  of  forgery,  is  a 
question  for  the  court.'»  And  whether  a  forged  instrument  is  or  is  not 
a  public  record  has  also  been  held  to  be  a  question  of  law  for  the  court.^o 
Indeed,  it  is  generally  a  question  for  the  court  as  to  whether  or  not 
the  paper  is  such  an  instrument  as  to  be  capable  of  being  made  the 
subject  of  forgery. 2'  And  the  question  as  to  the  existence  or  location 
of  the  instrument  is  a  preliminary  question  for  the  court  to  determine 
before  secondary  evidence  is  received.22  But  it  is  for  the  jury  to 
determine  whether  or  not  the  instrument  was  forged.^^*     And  when 

Instate  V.  Maxwell,  47  Iowa  454;  Car.  143;  but  see,  State  v.  Hastings, 

Haynes  v.   State,   15  Ohio   St.   455;  53  N.  H.  452;  Agee  v.  State,  117  Ala. 

Rembert  v.  State,  53  Ala.  467;   see  169,  21  So.  486;  Shope  v.  State,  106 

also,  I  2985,  note  2.  Ga.  226,  32  S.  E.  140. 

"  Romans   v.    State,    51    Ohio    St.  "  Overly  v.  State,  34  Tex.  Cr.  App. 

528,  37  N.  E.  1040;  see  also,  State  v.  500,  31  S.  W.  377;  Lampkin  v.  State, 

Pine,   (W.  Va.)   48  S.  E.  206,  to  the  105  Ala.  1,  16  So,  575. 

same  effect  where  a  city  clerk  was  ^  State  v.  Anderson,  30  La.  Ann. 

charged  with  forging  an  order  bear-  557. 

ing  the  genuine  signature  of  him-  ^  Overly  v.  State,  34  Tex.  Cr.  App. 

self  and  the  mayor.  500,  31  S.  W.  377;  People  v.  Smith, 

''Haslip  V.   State,  10  Neb.  590,  7  112  Mich.  192,  70  N.  W.  466;  Espalla 

N.  W.  331;   State  v.  Smith,  31  Mo.  v.   State,   108   Ala.   38,   19    So.    82; 

120;    State  v.  Fleshman,  40  W.  Va.  State  v.   Gryder,   44   La.   Ann.   962, 

726,  22  S.  E.  309;  McDonnell  v.  State,  11  So.  573. 

58  Ark.  242;  State  v.  Handy,  20  Me.  ==  State  v.  Lowry,  42  W.  Va.  205, 

81;    Wilson   v.   State,   70   Miss.   595,  24   S.   E.   561;    Morton  v.  State.   30 

13   So.   225;    People   v.    Marion.    29  Ala.  527. 

Mich.  31 ;   State  v.  Harrison,  69  N.  "'  Mosher  v.  State,  14  Ind.  261. 


261  WHO    COMPETENT    TO    TESTIFY.  [§   2989. 

the  issue  is  whether  a  certain  writing,  as  the  alleged  false  document, 
was  even  in  existence,  it  is  a  question  for  the  jury  to  determine  from 
all  the  evidence. 2*  So,  for  the  reason  that  it  is  for  the  jury  to 
determine  whether  the  instrument  in  question  is  a  forgery,  it  has 
been  held  that  it  may  be  given  to  the  jury  without  previously  being 
proved  to  be  forged. ^^  If  a  writing  is  ambiguous,  the  jury  may  in  a 
proper  case  infer  its  real  meaning  from  all  the  evidence. ^^  The 
weight  of  evidence,  including  credibility  of  witnesses,  is  also  for  the 
jury."  And  the  intent  to  damage  or  defraud  is  to  be  determined  by 
the  jury.^^  It  has  also  been  held  that  where  no  one  but  the  payee  had 
possession  of  a  check  after  its  delivery  by  the  maker  until  it  was  paid, 
and  during  that  time  it  was  altered,  the  question  as  to  who  committed 
the  forgery  should  be  submitted  to  the  jury,  though  there  was  no 
direct  evidence  against  the  payee.-"  So,  generally,  the  question  of  in- 
tent is  one  for  the  jury  and  they  may  infer  fraudulent  intent  from  the 
statements  and  conduct  of  the  accused  and  from  all  the  surrounding 
circumstances.^'' 

§  2989.  Who  competent  to  testify. — As  a  general  rule,  all  persons 
are  competent  to  testify  as  to  a  forgery  who  would  be  competent  to 
testify  as  to  any  other  fact.  The  former  rule  was  that  a  person  in- 
terested in  the  instrument  that  had  been  forged  was  not  a  competent 
witness  to  testify  as  to  the  forgery.  Statutes  in  some  jurisdictions 
and  judicial  decisions  in  many  others  have  changed  the  early  rule, 
however,  so  that  today  the  rule  is  generally  as  stated  above.^^  Thus, 
one  whose  name  had  been  forged  as  a  maker^^  or  an  indorser^^  is 
competent  to  testify.  So,  a  subscribing  witness  may  testify  that  his 
signature  is  forged.^*    But  the  subscribing  witness  to  the  instrument 

"•Garrett    v.    Gonter,    42    Pa.    St.  4  S.  E.  766;    State  v.  Williams,   66 

143;  Mosher  v.  State,  14  Ind.  261.  Iowa  573,  24  N.  W.  52. 

="Mosher   v.    State,    14    Ind.    261;  "Anson  v.  People,  148  111.  494,  35 

Hess  V.  State,  5  Ohio  5,  22  Am.  Dec.  N.  E.  145;   Hess  v.  State,  5  Ohio  5, 

767;   see  also.  State  v.  Hauser,  112  22  Am.  Dec.  767;  Commonwealth  v. 

La.  Ann.  313,  36  So.  396.  Waite,  5  Mass.  261;  People  v.  How- 

"McGarr  v.  State,  75  Ga.  155.  ell,  4  Johns.  (N.  Y.)  296. 

"State   v.   Stephen,   45    La.   Ann.  ==  Anson   v.    People,    148    111.    494, 

702,  12  So.  883;  Allgood  v.  State,  87  35  N.  E.  145;    State  v.   Henderson, 

Ga.  668,  13  S.  E.  569.  29  W.  Va.  147. 

=*  Kotter  v.  People,  150  111.  441,  37  "^  Respublica   v.   Keating,    1    Ball. 

N.  E.  932.  (Pa.)  110. 

®  Commonwealth  v.   Hide,  15  Ky.  "' People  v.   Sharp,   53   Mich.   523, 

L.  R.  264,  23  S.  W.  195.  19  N.  W.  168. 

^Timmons   v.   State,   80   Ga.   216, 


§2990.]  FORGERY.  2C,2 

alleged  to  be  forged  need  not  be  produced,  and  proof  by  the  person 
whose  name  is  charged  to  be  forged  is  held  to  be  sufficient.^^  So,  the 
obligor  or  person  whose  name  appears  on  a  forged  instrument  is  now 
generally  a  competent  witness  in  behalf  of  the  prosecution  as  well  as 
in  behalf  of  the  defense.^"  And  a  person  whose  name  appears  as  that 
of  the  officer  taking  a  supposed  acknowledgment  to  a  forged  instru- 
ment may  testify  that  his  signature  is  forged."  It  is  stated  in  some 
of  the  cases  that  there  is  a  duty  on  the  part  of  the  prosecution  to 
call  the  obligor  on  a  forged  instrument.^^  But  the  person  whose 
signature  is  alleged  to  be  forged  is  not  an  indispensable  witness  to 
establish  the  forgery,  where  there  is  no  uncertainty  as  to  his  identity.^^ 
Many  jurisdictions  hold  that  other  witnesses  by  their  testimony  may 
establish  the  falsity  of  the  instrument.*** 

§  2990.  Proof  of  intent  and  knowledge. — Proof  of  guilty  knowl- 
edge and  intent  to  defraud  is  essential.*^  But  the  intent  to  defraud 
may  be  inferred  from  the  circumstances,  and  hence  the  surrounding 
circumstances  bearing  on  the  question  of  fraud  are  competent  evi- 
dence.*^  In  proving  a  charge  of  uttering  a  forged  instrument,  it 
must  be  established  that  the  accused  knew  it  was  forged.*^    There 

^Simmons  v.  State,  7  Ohio  116;  State  v.  Williams,  66  Iowa  573,  24 

Garrett  v.  Hanshue,  53  Ohio  St.  482,  N.  W.  52;  People  v.  Caton,  25  Mich. 

42  N.  E.  256.  388;  Carver  v.  People,  39  Mich.  786; 

='^  State  V.  Phelps,  11  Vt.  116;  Com-  State  v.  Williams,  152  Mo.  115,  53 

monwealth  v.  Waite,   5   Mass.  261;  S.  W.  424,  and  authorities  cited  in 

Simmons  v.  State,  7  Ohio  116;  State  following  note. 

V.  Tull,  119  Mo.  44,  24  S.  W.  1019;  *^  Burdge  v.  State,  53  Ohio  St.  512, 

Anson  v.  People,  148  111.  494,  35  N.  42  N.  E.  594;  State  v.  Henderson,  29 

E.  145;  People  v.  Swetland,  77  Mich.  W.  Va.  147;  Parker  v.  People,  97  111. 

53,  43  N.  W.  779.  32;  People  v.  Phillips,  70  Cal.  61,  11 

"People  V.   Sharp,   53    Mich.    523,  Pac.  493;  State  v.  Williams,  66  Iowa 

19  N.  W.  168.  573,   24  N.   W.  52;    People  v.   Swet- 

•■«  Simmons  v.  State,  7  Ohio  116.  land,    77    Mich.    53,    43    N.    W.    779 ; 

=■'  Anson  v.  People,  148  111.  494,  35  State  v.  Morton,  27  Vt.  310,  65  Am. 

'N.  E.  145.  Dec.  201;  see  also,  Lascelles  v.  State, 

'"Commonwealth    v.    Smith,    6    S.  90  Ga.  347,  16  S.  E.  945,  35  Am.  St. 

&  R.  (Fa.)  568;  State  v.  Farrington,  216. 

90  Iowa  673,  57  N.  W.  606;   State  v.  "  State  v.  Lowry,  42  W.  Va.  205,  24 

Hooper.  2  Bailey  (S.  Car.)   37.  S.  E.   561;    Miller  v.   State,  51  Ind. 

"McGuire  v.   State,  37  Ala.   161;  405;     Commonwealth    v.    Searle,    2 

Elsey  v.  State,  47  Ark.  572,  2  S.  W.  Binn.    (Pa.)    332;    United   States  v. 

337;    Couch   v.    State,    28    Ga.    367;  Mitchell,    1    Baldw.     (U.    S.)     367; 

Kotter  V.  People,  150  111.  441,  37  N.  Grooms  v.   State,  40  Tex.   Cr.  App. 

E.  932;  Miller  v.  State,  51  Ind.  405;  319,  50  S.  W.  370. 


263  KNOWLEDGE    AND    IXTENT.  [§    2990. 

was  some  conflict  among  the  common  law  authorities  as  to  whether 
there  must  be  a  fraudulent  intent  to  defraud  a  particular  person, 
but  in  most  jurisdictions  at  tlie  present  time,  proof  of  a  general  in- 
tent to  defraud  is  sufficient  without  proof  of  an  intent  to  defraud  a 
specified  person.**  The  accused  may  sliow  by  evidence  that  he  was 
so  intoxicated  at  the  time  of  making  the  writing  that  he  was  incapable 
of  forming  tlie  criminal  intent.*^  The  following  have  l)oen  admit- 
ted as  evidence  showing  intent  and  knowledge:  The  manner  in  which 
the  forger  read  the  instrument  to  the  witness,  to  wliom  he  offered  it  ;**' 
that  the  defendant  previously  forged  another  instrument  for  tlie 
same  article,  but  subsequently  destroyed  it;*^  and  that  certain  state- 
ments were  made  by  the  defendant  in  obtaining  money  on  the  instru- 
ment.*'^ It  is  competent  to  show  that  the  defendant  forged  instru- 
ments similar  to  the  one  he  is  now  charged  with  forging,*"  and  that  at 
about  the  time  the  forged  check  was  uttered,  he  passed  other  forged 
checks.^"  An  acquital  under  an  indictment  for  forging  or  uttering 
a  particular  forged  instrument  will  not  preclude  the  prosecution  from 
proving  the  fact  of  the  possession  or  uttering  of  such  forged  paper 
in  another  prosecution  against  the  same  party  for  a  crime  of  the 
same  character.-'^  On  the  question  of  intent  evidence  of  uttering 
the  instrument  alleged  to  be  forged  is  admissible. °^  But  before 
evidence  of  uttering  the  instrument  is  admissible  on  the  question  of 
intent  the  act  claimed  to  be  a  forgery  must  first  be  established.  It 
has  been  said :  "The  forgery  not  being  in  any  sense  established,  and 
there  being  no  count  in  the  indictment  against  the  defendant  for 

^*See,    Sneel   v.    State,    2    Humph.  166,  51  Pac.  553;   State  v.  Hahn,  38 

(Tenn.)    347;    McClure  v.   Common-  La.  Ann.  169. 

wealth,  86  Pa.  St.  353;  State  v.  Hall,  "Butler  v.  State,  22  Ala.  43. 

108  N.  Car.  776,  13  S.  E.  189;  State  *' Ptobinson  v.  State,  66  Ind.  331. 

V.  Keneston,  59  N.  H.  36;  Roush  v.  ^  Chahoon    v.    Commonwealth,    20 

State,   34   Neb.   325,   51    N.   W.   755;  Gratt.  (Va.)  733. 

State  V.  Patch,  21  Mont.  534,  55  Pac.  ^»  Harding  v.   State,   54    Ind.   359; 

108;   Bennett  v.  State,  62  Ark.  516,  Fonville  v.  State,  17  Tex.  App.  368; 

532,  36  S.  W.  947;  People  v.  Turner,  Smith  v.   State,  29  Fla.  408,  10  So. 

113  Cal.  278,  45  Pac.  331;   Common-  894. 

Avealtn  v.  Henry,  118  Mass.  460;  but  ="  Steele  v.  People,  45  HI.  152. 

see,  Reg.  v.  Hodgson,  7  Cox  Cr.  Cas.  "  State  v.   Robinson,   16   N.   J.   L. 

122,  36  Eng.  L.  &  Eq.  626;  Barnes  v.  507;   Bell  v.  State,  57  Md.  108;   Mc- 

Commonwealtb,   101   Ky.   556,   41   S.  Cartney  v.  State,  3  Ind.  354,  56  Am. 

W.  772.  Dec.  510. 

"People    V.    Ellenwood,    119    Cal.  "Fox  v.  People,  95  111.  71;  Cohen 

V.  People,  7  Colo.  274,  3  Pac.  385. 


§    2991.]  FORGERY.  264 

passing  or  offering  to  pass  a  forged  paper,  it  was  error  to  admit  proof 
that  defendant  did  sell  and  transfer  the  paper  alleged  to  have  been 
forged."^^  On  a  trial  for  passing  counterfeit  bank  notes  or  forged 
instruments,  the  state  may  prove  the  passing,  by  defendant,  of  other 
counterfeit  notes  or  forged  instruments  for  the  purpose  of  showing 
a  guilty  intent.^*  Evidence  that  the  party  whose  name  was  forged 
had  no  legal  capacity  to  sign  an  instrument  is  not  relevant  if  an 
intent  to  defraud  is  established.^^  It  is  not  error  to  admit  in  evidence 
other  forged  instruments  found  in  the  possession  of  the  accused, 
as  bearing  upon  the  question  of  guilty  knowledge.^®  It  has  been  held 
that  where  one  is  charged  with  forgery  by  the  unauthorized  filling 
out  of  a  check  signed  by  the  defendant's  employers  in  blank,  that 
evidence  of  a  shortage  in  defendant's  accounts  is  not  competent  as 
proof  as  to  fraudulent  intent. ''' 

§  2991.  Proof  of  handwriting. — In  determining  whether  or  not  an 
instrument  has  been  forged,  and  who  committed  the  forgery,  if  any, 
proof  of  handwriting  is  usually  not  only  relevant,  but  is  also  necessary 
in  many  cases.  In  general  it  may  be  stated  that  the  rules  as  to  the 
proof  of  handwriting,  as  to  the  use  of  expert  and  non-expert  testi- 
mony and  as  to  standards  of  comparison  are  the  same  as  in  civil 
cases,^*  and  the  rules  upon  the  subject,  elsewhere  considered,^''  are 
usually  applicable.  The  fact  that  the  forged  instrument  is  in  the 
handwriting  of  the  defendant  is  not  only  relevant  but,  unexplained, 
is  usually  strong  evidence  of  his  guilt.®"  It  is  held  that  a  signature 
which  is  admittedly  genuine  or  clearly  proved  to  be  genuine  may  be 
compared  with  the  disputed  signature,  and  under  modern  statutes 
and  decisions  this  is  the  rule  in  many  jurisdictions.**^    But  at  common 

"^Luttrell  V.  State,  85  Tenn.  232,  4  Thomas  v.  State,  103  Ind.  419,  2  N. 

Am.  St.  760.  E.  808. 

=^  Harding  v.   State,   54    Ind.   359;  ^^  See,  Vol.  I,  §  676,  Vol.  II,  §§  1053, 

Card  V.  State,  109  Ind.  415,  9  N.  E.  1055,    1059,   1100-1105;    12   L.    R.   A. 

591.  456,  note;  62  L.  R.  A.  817,  note;  63 

°=  State  V.  Eades,  68  Mo.  150;   Fox  L.  R.  A.  163,  427,  937.  963,  notes. 

V.  People,  95  111.  71.  "o  Allgood  v.  State,  87  Ga.  668,  13 

^"Lindsey    v.    State,    38    Ohio    St.  S.   E.   569;    Langdon  v.   People,   133 

507.  111.  382,  24  N.  E.  874. 

"  People  V.  Dickie,  62  Him  (N.  Y.)  "^  See,   State  v.   Nettleton,   1   Root 

400,  17  N.  Y.  S.  51.  (Conn.)    308;    State   v.    Brunson,    1 

^Birmingham  Nat.  Bank  v.  Brad-  Root  (Conn.)  307;  Tyler  v.  Todd,  36 

ley,  108  Ala.  205,  19  So.  791;    State  Conn.  218;    Heard  v.    State,   9   Tex. 

V.  Minton,  116  Mo.  605.  22  S.  W.  808;  App.  1;    Williams  v.  State,  27  Tex. 


265  HANDWRITING.  [§   2991. 

law,  before  the  act  of  1854,  although  there  was  some  vaccillation,  and 
in  many  jurisdictions  in  this  country,  it  was  held,  in  the  absence  of  a 
statute,  that  a  paper  or  document  shown  to  be  in  the  handwriting  of 
the  accused,  which  had  no  relation  to  or  connection  with  the  document 
forged,  was  not  admissible  in  evidence  to  prove,  by  comparison  of 
the  handwriting,  that  the  forged  document  is  in  the  handwriting 
of  the  accused.*^  Thus,  it  has  been  held  that  notes,  mortgages,  wills 
or  other  papers  bearing  the  signature  of  one  whose  name  is  alleged 
to  have  been  forged  to  a  deed,  unless  they  are  a  part  of  the  files  in 
the  case,  or  already  in  evidence  for  other  purposes,  cannot,  on  a 
trial  for  forgery,  be  introduced  for  the  sole  purpose  of  making  a 
comparison  of  signatures.®^  It  has  also  been  held  that  the  hand- 
writing in  an  alleged  forged  instrument  cannot  be  proved  by  com- 
parison with  writings  admitted  in  evidence  over  the  defendant's  objec- 
tion, and  which  are  not  admitted  or  affirmatively  shown  to  be  in 
the  defendant's  handwriting,  though  he  does  not  deny  them.®*  On 
the  other  hand,  it  has  been  held  that  the  testimony  of  the  defendant 
alone  that  he  had  written  a  letter  is  sufficient  to  authenticate  the 
letter,  so  as  to  render  it  admissible  for  the  purpose  of  comparison 
to  prove  forgery.®^  And  it  has  been  held  that  for  the  purposes  of 
comparison,  a  hotel  register  in  which  defendant  had  written  his 
name  about  the  time  of  the  alleged  forgery,  is  competent  evidence,®" 

App.  466,  11  S.  W.  481;  Bradford  v.  8  So.  670;  Jumpertz  v.  People,  21  111. 

People,  22  Colo.  157,  43  Pac.  1013;  375;    Jones   v.    State,    60    Ind.    241; 

Boggus  v.  State,  34  Ga.  275;    State  State  v.  Miller,  47  Wis.  530,  3  N.  W. 

V.   Calkins,   73   Iowa  128,  34  N.   W.  31     (but    see,    Wis.    Rev.    St.    1898, 

777;  Commonwealth  v.  Andrews,  143  §  4189a);   Rose  v.  First  Nat.  Bank. 

Mass.  23,  8  N.  E.  643;   Morrison  v.  91   Mo.   399,   3   S.   W.   876    (but  see, 

Porter,  35  Minn.  425,  29  N.  W.  54,  59  Mo.  Rev.  St.  1899,  §  4679)  ;  State  v. 

Am.   R.   331;    State  v.   Zimmerman,  Koontz,  31  W.  Va.  127,  5  S.  E.  328. 

47  Kans.  242,  27  Pac.  999;    State  v.  '^^  People  v.  Parker,  67  Mich.  222. 

Stegman,  62  Kans.  476,  63  Pac.  746;  34   N.  W.  720,   11  Am.   St.   578;    in. 

Garvin  v.  State,  52  Miss.  207;  State  People  v.  Marion,  29  Mich.  31.  it  is 

V.  Brown,  4  R.  I.  528,  70  Am.  Dec.  held  that  a  seal  may  be  shown  to  be 

168;    Sprouse  v.  Commonwealth,  81  false  by  comparison  with  one  that 

Va.  374;   and  see  review  of  authori-  is  genuine. 

ties  by  states  in,  62  L.  R.  A.  817-874,  "*  State  v.  Ezekiel,  33  S.  Car.  115, 

note.  11  S.  E.  635. 

«=  State  V.  Fritz,  23  La.  Ann.  55;  •«>  Mallory    v.    State,    37    Tex.    Cr. 

United    States   v.    Prout,    4    Cranch  App.    482,    36    S.    W.    751;    but    see, 

(U.  S.)  301;  United  States  v.  Jones,  Jones  v.  State,  60  Ind.  241;  Hazzard 

10  Fed.  469;  Curtis  v.  State,  118  Ala.  v.  Vickery,  78  Ind.  64. 

125,  24  So.  Ill;   Bishop  v.  State,  30  *  State  v.  Farrington.  90  Iowa  673, 

Ala.  34;  Griffin  v.  State,  90  Ala.  596,  57  N.  W.  606;  see  also,  State  v.  Shin- 


§    2992.]  FORGERY.  266 

And  so  it  has  been  held  that  the  use  of  defendant's  signature  to  an 
application  for  a  continuance  as  a  standard  of  comparison  cannot 
be  objected  to  on  the  ground  that  it  is  not  sufficiently  proved  to  be 
his  signature,  since  he  is  estopped  from  denying  its  genuineness.*'^ 
And  it  is  generally  held,  no  matter  which  view  is  taken  as  to  the 
admissibility  of  other  writings  for  the  mere  purpose  of  comparison, 
that  papers  already  in  evidence  and  admitted  to  be  in  the  handwriting 
of  the  defendant  may  be  compared  by  the  jury  with  the  paper  in 
dispute  in  determining  the  handwriting  of  the  latter.^^  On  a  trial  for 
forgery  of  a  mortgage,  the  persons  whose  names  appear  as  acknowl- 
edging officer  and  subscribing  witness  may  testify  that  they  did  not 
sign  the  instrument,  though  the  subscribing  witness  was  not  named 
in  the  information.^^  It  has  also  been  held  immaterial  that  the  writ- 
ing alleged  to  have  been  forged  is  badly  written,  for  if  it  can  be  made 
out  it  is  good  evidence.'*'  And  the  fact  that  the  alleged  forger 
imitated  the  handwriting  of  the  party  whose  name  is  signed  to  the 
instrument  is  a  circumstance  that  may  be  considered  by  the  jury 
even  though  the  accused  admits  that  he  signed  it  and  claims  that  he 
had  authority  to  do  so.'^  But  it  is  not,  ordinarily  relevant  to  show 
that  the  accused  was  skilled  in  imitating  writing,  and  thus  had  the 
capacity  or  ability  to  commit  the  crime,  where  he  has  introduced  no 
evidence  upon  the  subject.'^ ^ 

§  2992.  Production  of  forged  instrument. — The  instrument  al- 
leged to  have  been  forged  is,  of  course,  admissible, '^^  and  as  a  general 
rule,  at  least,  it  must  be  introduced  in  evidence  at  the  trial  if  pos- 

born,    46    N.    H.    497,    88    Am.    Dec.  ^  People  v.  Sharp,  53  Mich.  523,  19 

224.  N.  W.  168. 

"  State  v.  Farrington,  90  Iowa  673,  ™  McGarr  v.  State,  75  Ga.  155. 

57    N.    W.    606;    see    also.    State   v.  "  State  v.  Lurch,  12  Ore.  99,  6  Pac. 

Thompson,  132  Mo.  301,  34  S.  W.  31;  408;    see  also.  Walker  v.  Logan,  75 

Tucker  v.  Hyatt,  144  Ind.  635,  41  N.  Ga.  759;   West  v.  State,  22  N.  J.  L. 

E.  1047,  43  N.  E.  872.  212;  Riley  v.  State,  (Tex.  Gr.  App.) 

•^Stokes  V.  United  States,  157  U.  44  S.  W.  498;  Neall  v.  United  States, 

S.   187,   15   Sup.   Ct.    617;    Moore  v.  118  Fed.  699. 

United  States,  91  U.  S.  270;  Hickory  '^  State  v.    Hopkins,   50   Vt.    316; 

V.  United   States,  151  U.  S.  303,  14  Dow  v.  Spenny,  29  Mo.  386;  but  see, 

Sup.  Ct.  334;  McDonnell  v.  State,  58  Groom  v.  Sugg,  110  N.  Car.  259,  14 

Ark.  242,  24  S.  W.  105,  and  authori-  S.  E.  748. 

ties  cited  in  the  preceding  notes  to  "'  People  v.  Dole,  122  Gal.  486,  55 

this  section.  Pac.  581. 


267  SECONDARY   EVIDENCE.  [§    2993. 

sible.'^*  Thus,  it  is  generally  held  that  the  prosecution  must  produce 
the  false  writing,  or  it  must  be  accounted  for  by  showing  that  the 
accused  has  possession  of  it,  or  that  it  has  been  destroyed,  or  the 
like.''''  And  it  is  also  held  that  the  accused  must  be  given  notice  to 
bring  to  the  trial  the  false  writing  when  the  same  is  in  his  posses- 
sion.'^*'  So,  it  has  been  held  that  it  is  error  to  admit  evidence  of 
other  similar  forged  notes  in  the  defendant's  possession,  without  pro- 
ducing such  other  notes  in  court,  or  giving  the  defendant  notice,  if 
they  are  in  his  possession. '^^ 

§  2993.  Secondary  evidence  of  forged  instrument. — In  case  the 
non-production  of  an  instrument  is  satisfactorily  accounted  for,  and 
the  foundation  properly  laid,  secondary  evidence  of  its  contents  is 
admissible,"*^  in  a  proper  case.  As  a  general  rule  the  contents  of  an 
alleged  forged  writing  may  be  proved  by  secondary  evidence  under 
the  same  circumstances  that  the  contents  of  any  other  writing  may 
be  so  proved."®  If  there  is  a  copy  which  can  be  sworn  to,  it  should 
generally  be  introduced,  and  if  there  is  not  such  a  copy  then  proof 
by  parol  evidence  is  sufficient.^''  That  is,  the  prevailing  rule  as  to 
the  best  evidence  being  produced  exists  as  to  the  production  of  the 
writing  alleged  to  have  been  forged.  Thus,  if  a  copy  exists,  oral 
proof  is  not  admissible  and  the  copy  should  be  introduced.'*^  Sec- 
ondary evidence  is  admissible  where  it  is  shown  that  the  instrument 

"People  v.  Swetland,  77  Mich.  53,  ,Cross  v.  People,  192  111.  291,  61  N.  E. 

43   N.   W.    779;    2   Bishop   Cr.   Proc.  400;  State  v.  Potts,  9  N.  J.  L.  26.  17 

387;  Hughes  Cr.  Law,  §  964.  Am.  Dec.  449;  Dovalina  v.  State,  14 

"People  v.  Kingsley,  2  Cow.    (N.  Tex.   App.    312;    see   also,   Common- 

Y.)    522,  14  Am.  Dec.  520;    State  v.  wealth  v.  Snell,  3  Mass.  82;   Thorn- 

Callendine,  8  Iowa  288;  Manaway  v.  ley  v.  State,  36  Tex.  Cr.  App.  118,  34 

State,  44  Ala.  375;    People  v.  Swet-  S.  W.  264;  State  v.  Davis,  69  N.  Car. 

land,    77   Mich.    53,    43    N.    W.    779:  313. 

State  V.  Lowry,  42  W.  Va.  205,  24  S.         "Mead  v.  State,  53  N.  J.  L.  601,  23 

E.  561;  Cross  v.  People,  192  111.  291,  Atl.  264;  Henderson  v.  State,  14  Tex. 

61  N.  E.  400.  503. 

''"  State  v.  Kimbrough,  13  N.  Car.         *"  Commonwealth  v.  Snell,  3  Mass. 

431;   State  v.  Lowry,  42  W.  Va.  205,  82;    State  v.  Lowry,  42  W.  Va.  205. 

24   S.   E.    561;    Rollins  v.    State,   21  24  S.  E.  561;  Mead  v.  State,  53  N.  J. 

Tex.  App.  148,  17  S.  W.  466;    State  L.  601,  23  Atl.  264. 
V.  Cole,  19  Wis.  142.  ^^»  Commonwealth  v.  Snell,  3  Mass. 

'^  State  v.  Breckenridge,   67    Iowa  82;   Thompson  v.  State,  30  Ala.  28; 

204,  206,  25  N.  W.  130;  State  V.  Cole,  see    also.    State    v.    Ford,    2    Root 

19  Wis.  129,  88  Am.  Dec.  678.  (Conn.)  93. 

"Manaway  v.  State.  44  Ala.  375; 


§    2994.]  FORGERY.  268 

was  destroyed  for  the  purpose  of  protecting  the  forger,  though  with- 
out his  privity.®^  So  also,  where  it  appears  that  the  instrument 
has  been  destroyed  or  suppressed  by  the  forger.*^  And  also,  in  some 
cases  where  it  has  been  mutilated.***  Where  it  is  shown  that  an 
instrument  is  beyond  the  jurisdiction  of  the  court  secondary  evidence 
is  admissible  if  notice  has  been  given  to  produce  the  original  on  the 
trial.^^  And  it  is  held  that  if  the  instrument  is  in  the  forger's  hands, 
secondary  evidence  is  admissible,  but  that  notice  to  produce  it  must 
be  given  to  him  before  evidence  of  its  existence,  contents  and  char- 
acter will  be  received  in  evidence.^®  But  it  would  not  be  altogether 
unreasonable,  nor  entirely  without  precedent,  to  hold  that  the  indict- 
ment itself  is  sufficient  notice  and  that  if  the  forged  writing  is  shown 
to  be  in  the  possession  of  the  defendant,  and  he  does  not  produce  it, 
he  ought  not  to  be  allowed  to  complain  of  the  admission  of  secondary 
evidence.*^  At  all  events,  if  forged  instruments  are  in  the  possession 
of  the  defendant,  and  not  produced,  the  next  best  evidence  of  their 
contents  may  be  given,  even  though  it  is  parol,  after  service  of  notice 
to  produce  them.'*^  And  photographic  copies  are  admissible,  in  a 
proper  case,  together  with  the  testimony  of  the  photographer  as  to 
their  accuracy,  where  the  accused  refuses  to  produce  the  original  in 
his  possession,  or  where  they  constitute  the  best  evidence  obtain- 
able.«« 

§  2994.  Other  forged  instruments. — Testimony  as  to  other  forger- 
ies, or  of  the  possession  of  forged  papers  about  the  same  time,  has 
generally  been  held  admissible  to  establish  a  uniform  course  of  acting 

^-  Pendleton   v.   Commonwealth,   4  *'  See,    United    States   v.    Doebler, 

Leigh  (Va.)  694,  26  Am.  Dec.  342.  Baldw.  (U.  S.)  519,  25  Fed.  Cas.  No. 

'=Ross  V.   Bruce,   1   Day    (Conn.)  14,977;  People  v.  Swetland,  77  Mich. 

100.  53,  43  N.  W.  779,  780;    McGinnis  v. 

""  Thompson  v.  State,  30  Ala.  28.  State, '24    Ind.    500,    503;    see    also, 

"^  Thornley   v.    State,   36   Tex.   Cr.  State  v.  Wilkerson,  98  N.  Car.  696,  3 

App.  118,  34  S.  W.  264.  S.   E.    683;    People  v.    Holbrook,    13 

*^  Rollins   V.    State,    21    Tex.    App.  Johns.  (N.  Y.)  90. 

148,   17    S.    W.    466;    State   v.    Kim-  '"  Armitage  v.  State,  13  Ind.  441; 

brough,    13    N.    Car.    431;    State    v.  Williams  v.  State,  16  Ind.  461,  and 

Flander,  118  Mo.  227,  23  S.  W.  1086;  authorities  cited  in  preceding  notes. 

State  v.  Lowry,  42  Va.  205,  24  S.  E.  ■"  Duffin  v.  People,  107  111.  113,  47 

561;  State  v.  Cole,  19  Wis.  142;  Rex  Am.  R.  431;  United  States  v.  Ortiz, 

v.  Haworth,  4  Car.  &  P.  254;  see  also,  176  U.  S.  422,  20  Sup.  Ct.  466;    see 

State  V.  Saunders,  68  Iowa  370,  27  also.  Grooms  v.   State,  40  Tex.   Cr, 

N.  W.  455;  but  see,  Ross  v.  Bruce,  1  App.  319,  50  S.  W.  370. 
Day  (Conn.)  100. 


269  OTHER  FOiiGED  IXSTRUMENTS.  [§    2994. 

from  which  guilty  knowledge  and  criminal  intent  may  be  inferred.®" 
But  evidence  of  the  declarations  of  the  defendant  in  respect  to  alleged 
forged  instruments  which  are  not  produced  to  the  jury  or  proved 
to  be  forgeries  should  not  be  admitted. '^^  So,  statements  as  to  other 
instruments  of  the  same  kind  as  the  one  alleged  to  have  been  forged 
are  not  usually  admissible.®-  But  facts  showing  that  the  accused 
uttered  other  false  writings  under  similar  circumstances  are  admis- 
sible in  a  proper  case.®^  Proof  of  possession  and  of  use  of  forged 
papers,  whether  by  the  accused  or  by  an  accomplice,  has  been  held 
admissible,  whether  before  or  after  the  time  of  tlie  forgery  for  wliich 
the  accused  is  being  tried.®*  But  when  other  writings  found  on  de- 
fendant's person  were  admitted  in  evidence  without  proof  that  they 
were  also  forgeries  it  was  considered  reversible  error.®"  And,  in 
general,  other  similar  papers  are  not  admissible  unless  it  is  first 
shown  that  such  papers  were  forged,  and  the  accused  had  guilty  con- 
nection therewith.®^  So,  it  has  been  held  error  to  allow  a  witness 
to  answer  a  question  as  to  whether  there  was  ever  any  question  about 
a  certain  otlier  note  he  had  signed  with  defendant,  such  note  not 
being  produced,  nor  its  absence  accounted  for.®^  But  evidence  that 
at  the  time  of  the  arrest  of  the  alleged  forger  he  had  with  him  checks, 
and  about  that  time  had  passed  others,  all  of  which  were  forgeries, 
is  admissible  as  tending  to  show  his  guilty  knowledge  as  to  the  check 
set  out  in  the  indictment  as  that  his  purpose  in  the  forgery  and  the 

^People  V.   Everhardt,  104   N.  Y.  148  111.  494,  35  N.  E.  145;  Robinson 

591,  11  N.  E.  62;    Fox  v.  People,  95  v.  State,  66  Ind.  331;  Carver  v.  Peo- 

111.   71;    Commonwealth   v.    Russell,  pie,  39   Mich.   786;    People  v.   Ever- 

156  Mass.  196,  30  N.  E.  763;  State  v.  hardt,  104  N.  Y.   591.  11   N.  E.   62; 

Minton,  116  Mo.  605,  22  S.  W.  808;  State  v.  Hodges,  144  Mo.  50,  45  S.  W. 

Card  V.  State,  109  Ind.  415,  9  N.  B.  1093. 

591;  People  v.  Bibby,  91  Cal.  470,  27  "Harding  v.    State,  54    Ind.   359; 

Pac.  781;  Davis  v.  State,  58  Neb.  465,  Commonwealth    v.    Price,    10    Gray 

78  N.  W.  930;   State  v.  Allen,  56  S.  (Mass.)      472;      Commonwealth     v. 

Car.  495,  35  S.  E.  204;  Bell  v.  State,  White,  145  Mass.  392.  6  N.  E.  611. 

57    Md.    108;    Lindsey    v.    State,    38  '^^  People  v.  Altman,  147  N.  Y.  473, 

Ohio    St.    107;    State   v.    Prins,    117  42  N.  E.  180. 

Iowa  505,  91  N.  W.  758.  "^  State  v.   Lowry,  42  W.  Va.  205, 

"Anson  v.  People,  148  111.  494,  35  24   S.  E.  561;    People  v.  Whiteman, 

N.  E.  145.  114  Cal.  338,  46  Pac.  99;    People  v. 

»=Fox  V.  People,  95  111.  71;  Reg.  v.  Bird,  124  Cal.  32,  56  Pac.  639;  State 

Cooke,  8  Car.  &  P.  582.  v.  Rose.  70  Minn.  403.  73  N.  W.  177. 

*»  Commonwealth    v.     White,     145  "^  State  v.  Saunders,  68  Iowa  370, 

Mass.   392,  14  N.  E.   611;    People  v.  27  N.  W.  455. 
Frank,  28  Cal.  507;  Anson  v.  People, 


§  2995.]  PORGERY,  270 

uttering  was  to  defraud.'®  And  evidence  as  to  an  indictment  for 
another  forgery  has  been  held  admissible  even  though  the  accused 
was  acquitted  of  such  other  crime,  since  the  acquittal  does  not  neces- 
garily  prove  that  he  was  innocent  of  the  charge.®' 

§  2995.  Evidence  in  general. — Circumstantial  evidence  is  admis- 
sible in  proving  the  crime  of  forgery,  and  usually  it  is  necessary  to 
make  out  the  crime  by  circumstantial  evidence.^""  Thus,  proof  of 
the  place  where  the  forgery  was  committed  may  be  made  by  circum- 
stantial as  well  as  by  direct  evidence.^"^  So,  it  is  not  necessary  that  the 
intent  to  defraud  be  established  by  direct  proof;  it  may  be  inferred 
from  the  facts  and  circumstances.^**^  And  it  has  been  held  that  evi- 
dence of  the  pecuniary  condition  of  the  accused  at  or  about  the  date 
of  the  receipt  alleged  to  have  been  forged  is  admissible,  as  tending 
to  show  that  the  receipt  had  been  forged."^  But  on  the  prosecution 
of  a  person  for  forging  his  mother's  name  on  a  note  as  surety  for 
himself,  evidence  of  the  relative  property  interests  of  defendant  and 
his  mother  has  been  held  incompetent.^"*  Although  obtaining  money 
on  a  forged  deed  is  not  of  itself  proof  of  forgery,  yet  it  is  a  circum- 
stance in  relation  to  the  uttering  and  the  intent  which  the  jury  may 
take  into  consideration  in  reaching  their  decision.^ "^  So,  inculpatory 
acts  of  the  accused  are  often  admissible  for  the  purpose  of  proving 
the  forgery.^"®  The  general  rule  as  to  confessions  applies  to  con- 
fessions in  case  of  forgery.  A  confession  induced  by  threats  or  im- 
proper promises  is  not  admissible.^**^  But  it  was  held  competent  and 
not  compelling  one  to  furnish  evidence  against  himself  where  he 
was  asked  by  the  magistrate  on  examination  to  write  the  name  of 

*«  Commonwealth   v.    Russell,    156  19  Am.  R.  673;  State  v.  Hahn,  38  La. 

Mass.  196,  30  N.  E.  763;    Bishop  v.  Ann.  169. 

State,  55  Md.  138;  but  see.  Joiner  v.  "^  State  v.  Henderson,  29  W.  Va. 

State,  (Tex.  Cr.  App.)  80  S.  W.  531.  147,  1  S.  E.  225. 

«« Commonwealth    v.     White,     145  ^"^  State  v.  Tull,  119  Mo.  421,  24  S. 

Mass.    392,    14    N.    E.    611;    Bell    v.  W.  1010. 

State,  57  Md.  108;   State  v.  McAllis-  "«^  United  States  v.  Brooks,  3  Mac- 

ter,  24  Me.  139;  McCartney  v.  State,  Arth.  (D.  C.)  315. 

3  Ind.  353;  State  v.  Robinson,  16  N.  ^"«  People  v.  King,  125  Cal.  369,  58 

J.  L.  507.  Pac.  19;    State  v.  Williams,  27  Vt. 

'•^  Commonwealth     v.     Bargar,     2  724;    Burdge   v.    State,   53   Ohio   St. 

Law  T.  (N.  S.)    (Pa.)  161.  512,   42   N.   E.    594;    Riley  v.   State, 

^"  State    V.    Chamberlain,    89    Mo.  (Tex,  Cr.  App.)  44  S.  W.  498. 

129.  >«'  State  v.  Walker,  34  Vt.  296,  301 ; 

^  Fletcher  v.  State,  49  Ind.   124.  see.  Vol.  I,  §  217,  et  seq. 


271  EVIDENCE    IN    GENERAL.  [§    291)."). 

the  person  whose  name  had  been  forged,  which,  without  threat  or 
promise,  he  did,  misspelling  it  as  it  was  misspelled  in  the  forged  instru- 
ment."^ And  confessions  relative  to  other  forged  instruments  of  the 
same  character  found  in  the  defendant's  possession  when  arrested  and 
shown  to  be  forgeries  have  been  held  admissible."^  But,  ordinarily, 
statements  as  to  other  instruments,  at  least  when  they  are  not  pro- 
duced or  otherwise  shown  to  be  forgeries,  are  not  admissi1)le.""  The 
state  may  prove  in  a  proper  case,  that  a  name  partially  obliterated  by 
wear  and  tear  was,  at  the  time  of  the  execution  of  the  note,  written 
plainly  upon  it.^^^  So,  the  chemical  effect  of  a  powder  in  the  posses- 
sion of  defendant  may  be  shown  to  the  jury  as  bearing  on  the  manner 
in  which  the  alteration  was  effected."^  In  a  prosecution  for  forgery 
of  a  note,  evidence  tending  to  show  that  the  note  was  used  to  secure 
a  valuable  benefit  from  the  person  to  whom  it  was  delivered,  has  been 
held  admissible,  though  it  was  of  facts  taking  place  after  the  delivery 
of  the  note."^  Evidence  is  admissible  in  a  proper  case  to  show  that 
the  forged  name  is  fictitious."*  So,  generally,  evidence  is  admissible, 
which  shows  or  tends  to  show  the  existence  or  non-existence  of  the 
person  who  is  supposed,  or  pretended  to  be  indicated  by  the  name, 
since  forgery  is  committed  when  a  fictitious  name  or  the  name  of  a 
dead  person  is  attached  to  a  paper  with  a  fraudulent  intent."-"' 
Eecords  of  former  proceedings  in  which  such  forgery  was  the  subject 
of  litigation  have  been  admissible  in  evidence."^  And  on  a  trial  for 
forging  an  order  for  merchandise,  evidence  is  admissible  that  de- 
fendant declared  when  he  presented  it  that  it  was  an  order  from  the 
person  whose  name  it  bore."^    When  the  matter  at  issue  is  as  to  the 

"^Sprouse   v.    Commonwealth,    81  Mass.   64,   27   N.   E.   997;    People  v. 

Va.  374.  Sharp,  53  Mich.  523,  19  N.  W.  168; 

'»» Commonwealth   v.   Russell,   156  People  v.  Jones,  106  N.  Y.  523,  13  N. 

Mass.  196,  30  N.  E.  763.  E.  93. 

""See,  Fox  v.  People,  95  111.  71;  "'Commonwealth  v.  Costello,  120 

Reg.    V.    Cooke,    8    Car.    &    P.    582;  Mass.  358;  Brewer  v.  State,  32  Tex. 

Jonier  v.  State,   (Tex.  Cr.  App.)    80  Cr.  App.  74,  22   S.  W.  41;    State  v. 

S.  W.  531.  Baumon,  52  Iowa  6S;   State  v.  Cov- 

1"  Inman  v.  State,  35  Tex.  Cr.  App.  ington,  94  N.  Car.  913,  and  authori- 

36,  30  S.  W.  219.  ties  cited  In  last  note,  supra. 

"'People    V.    Brotherton,    47    Cal.  ""State  v.  Henderson,  29   W.  Va. 

388;  People  v.  Dole,  122  Cal.  486,  55  147,  1  S.  E.  225;  State  v.  Calkins,  73 

Pac.  581.  Iowa  128,  34  N.  W.  777;   Perkins  v. 

"'People   v.   Phillips,    70   Cal.    61,  People,  27  Mich.  380. 

11  Pac.  493.  "'  Gardner  v.  State,  96  Ala.  12,  11 

"*  State  V.  Hahn,  38  La.  Ann.  169;  So.  402. 
Commonwealth     v.     Meserve,     154 


§   2996.]  FORGERY.  272 

uttering  of  a  forged  promissory  note,  evidence  tending  to  show  that 
the  note  had  been  paid  is  immaterial  and  should  be  excluded.^^^  And 
in  an  indictment  for  the  forgery  of  a  note,  the  letter  of  the  cashier 
of  a  bank,  to  whom  the  note  was  sent  for  collection,  making  sug- 
gestions as  to  the  residence  of  the  parties  to  the  note,  is  not  admis- 
sible in  evidence.^^**  But  evidence  has  been  held  admissible  to  show 
that  defendant,  at  the  time  of  negotiating  an  alleged  forged  note 
represented  that  the  maker  thereof  lived  at  a  certain  place,  and  that 
the  note  would  be  paid  when  due,  while  in  fact  no  such  person  lived 
at  that  place.^-"  It  has  also  been  held  that  evidence  that  the  de- 
fendant had  forged  the  same  signature  to  a  chattel  mortgage  given 
to  secure  the  note  is  material. ^^^  It  is  generally  held  that  since  the 
forged  instrument  is  void  there  can  be  no  subsequent  ratification  so 
as  to  bar  a  prosecution  for  the  crime.^^^  It  is  not  necessary  to  produce 
all  the  persons  through  whose  hands  the  instrument  had  passed.^^' 
But  it  must  appear  that  the  instrument  was  a  forged  instrument 
when  it  left  defendant's  hands.^^*  Testimony  of  the  husband  of  one 
who  is  alleged  to  have  secured  a  loan  and  given  a  note  to  cover  the 
same  that  he  did  not  know  or  hear  of  her  having  that  amount  of 
money  at  or  about  the  time  of  the  execution  of  the  note  is  not  ad- 
missible.^^^  But  it  is  held  that  the  meaning  of  the  writing  alleged 
to  have  been  forged  may  be  ascertained  when  necessary  by  parol  evi- 
denced^*' 

§  2996.  Evidence  in  defense. — The  accused  may  show  that  intem- 
perance had  so  far  impaired  his  mind  as  to  render  him  incapable  of 
having  a  fraudulent  intent.^^^  So,  he  may,  of  course,  show  by  proper 
evidence,  that  he  did  not  forge  the  writing  in  question,  or  that  he 
had  authority  to  sign  the  name,  or  the  like.^^®    It  has  also  been  held 

"*  People  v.  Brown,  72  N.  Y.  571;  ^=^  Bank   of   Pennsylvania  v.   Hal- 
see  also.  Joiner  t.  State,    (Tex.  Cr.  derman,  1  Pen.  &  W.  (Pa.)  161. 
App.)  80  S.  W.  531.  "*  McDonnell  v.  State,  58  Ark.  242, 

"» Farrington    v.    State,    10    Ohio  24  S.  W.  105. 

354.  '^People  v.  Stoddard,  64  Hun  (N. 

'=»  Commonwealth     v.     Norris,     9  Y.)  633,  19  N.  Y.  S.  937. 

Montg.  Co.  (Pa.)  143.  '^-^  McGarr  v.  State,  75  Ga.  155. 

^^  People   v.    De   Kroyft,    49    Hun  '="  Williams  v.  State,  126  Ala.  50, 

(N.  Y.)  71,  1  N.  Y.  S.  692.  28  So.  632;  People  v.  Blake,  65  Cal. 

'^McHugh    v.    Schuylkill    Co.,    67  275,  4  Pac.  1;   People  v.  Ellenwood, 

Pa.  St.  391,  5  Am.  R.  445;  Workman  119  Cal.  166,  51   Pac.  553;    State  v. 

V.  Wright,  33  Ohio  St.  405,  31  Am.  Hahn,  38  La.  Ann.  169. 

R.  546;  Howell  v.  McCrie,  36  Kans.  '^And  even  though  he  had  no  au- 

636,  14  Pac.  257.  thority,  it  may  not  be  forgery  if  he 


273  DEFENSES — SUFFICIENCY  OF  EVIDENCE.       [§  2997. 

that  evidence  tending  to  show  that  the  instrument  forged  could  not 
hurt  any  one  is  competent  evidence  for  the  defendant.^-"  But  if  the 
accused  altered  tlie  instrument  witli  intent  to  defraud,  and  it  was 
capable  of  having  that  elfect,  it  is  no  defense  that  the  alterations  were 
plain  and  that  no  special  attempt  was  made  to  conceal  them.""  Nor 
does  tlie  fact  that  the  person  whose  name  is  forged  was  indebted  to 
the  defendant  justify  the  forgery."^  And  lack  of  vigilance  on  the 
part  of  the  one  defrauded  will  not  excuse  the  accused."-  So,  the 
fact  that  the  accused  intended  to  repay  the  party  defrauded,  or  did 
repay  him,  is  not  a  good  defense."^ 

§  2997.  Weight  and  sufficiency  of  evidence. — Evidence  is  suf- 
ficient to  sustain  a  charge  of  uttering  forged  paper  when  there  is 
proof  that  the  paper,  capable  of  defrauding,  was  delivered  to  one  for 
value  by  the  defendant,  knowing  it  to  be  false,  and  with  an  intent 
to  pass  it  as  a  valid  subsisting  instrument,  or  it  was  used,  under  such 
circumstances,  to  obtain  money  or  credit.^^*  But  there  must  appear 
to  have  been  in  effect  a  statement  or  representation  by  word  or 
conduct,  that  the  signature  was  valid  and  the  instrument  genuine. "° 
The  mere  possession  of  a  false  instrument  is  not  sufficient  proof  of 
the  crime  in  the  absence  of  a  guilty  intent  or  knowledge.""  But 
possession  of  a  forged  instrument  in  favor  of  the  person  holding  it 

supposed   he  had.    State  v.   Taylor,  '=^  Commonwealth    v.    Henry,    118 

46  La.  Ann.  1332,  16  So.  190.  Mass.  460;    Green  v.   State,  36  Tex. 

^■^Barnum  v.  State,  15  Ohio  717,  45  Cr.  App.  109,  35  S.  W.  971;   Reg.  v. 

Am.    Dec.    601;    see   also,    Roode   v.  Beard,  8  Car.  &  P.  143.   Nor  is  ratifi- 

State,    5    Neb.    174;    Terry   v.    Com-  cation.    Howell  v.  McCrie,  36  Kans. 

monwealth,  87  Va.  672,  13  S.  E.  104.  636,  14  Pac.  247;   State  v.  Tull,  119 

i=»Rohr  V.  State,  60  N.  J.  L.  576,  38  Mo.  421,  24  S.  W.  1010;   Countee  v. 

Atl.  673;  see  also.  State  v.  Robinson,  State,  (Tex.  Cr.  App.)  33  S.  W.  127. 

16  N.  J.  L.  507,  510.    Nor  is  similar-  '"'  Thurmond  v.  State,  25  Tex.  App. 

ity  in  name  a  good  defense  in  such  366,  8  S.  W.  473;  State  v.  Redstrake, 

a  case.    People  v.  Rushing,  130  Cal.  39  N.  J.  L.  365;   People  v.  Ah  Woo, 

449,  62  Pac.  742;    Barfield  v.   State,  28  Cal.   205;    People  v.  Rathbun,  21 

29  Ga.  127,  74  Am.  Dec.  49;   People  Wend.   (N.  Y.)   509. 

V.  Peacock,  6  Cow.  (N.  Y.)  72.  "^  Folden  v.  State,  13  Neb.  328,  14 

'» Curtis  V.  State,  118  Ala.  125,  24  N.    W.    412;    People    v.    Brigham,    2 

So.  111.  Mich.   550;    Couch  v.   State.   28  Ga. 

"'United  States  v.  Turner,  7  Pet.  367. 

(U.  S.)   132;  Commonwealth  v.  Fos-  '-"People  v.  Dole,  122  Cal.  486,  55 

ter,  114  Mass.   311,  19  Am.  R.  353;  Pac.  581;   Millsaps  v.  State,  38  Tex. 

Garmire  v.  State.  104  Ind.  444,  4  N.  Cr.  App.  570,  43  S.  W.  1015. 
E.   54;    Lawless   v.    State,    114    Wis. 
189,  89  N.  W.  891. 

Vol.  4  Elilott  Ev. — 18 


§   2997.]  FORGERY.  274 

has  been  sufficient  to  raise  a  presumption  that  he  forged  it  or  caused 
it  to  be  forged. ^^■^  And  when  one  passes  a  forged  instrument,  repre- 
senting himself  to  be  the  payee,  such  representation  is  sufficient  with- 
out other  evidence  to  indicate  a  knowledge  of  the  forgery. ^^®  The 
possession  of  forged  writings,  or  the  passing  of  them  in  the  county 
where  the  indictment  was  found,  is  considered  of  great  weight  as  tend- 
ing to  show  that  the  forgery  was  committed  in  that  county.^^^  And 
some  Jurisdictions  hold  that  proof  of  venue  in  a  prosecution  for 
forgery  is  sufficient  if  it  appears  that  the  offer  to  pass  the  forged 
instrument  by  the  accused,  with  full  knowledge  of  its  character, 
was  made  in  the  parish  or  county  where  the  charge  is  brought, 
though  it  did  not  purport  on  its  face  to  have  been  executed  in  such 
parish  or  county.^*^  Where  the  defendant,  in  an  action  on  an  in- 
surance policy,  claimed  that  the  plaintiff  was  not  the  owner  of  the 
premises  on  which  the  burned  buildings  were  located,  and  plaintiff 
claimed  title  through  a  deed  from  his  wife  made  in  a  certain  year, 
and  there  was  evidence  that  the  printed  blank  on  which  the  deed  was 
written  was  not  printed  until  four  years  later,  and  that  his  wife  died 
in  the  year  he  claimed  the  deed  was  made,  it  was  held  that  the  finding 
that  the  deed  was  a  forgery  was  properly  supported.^*^  It  is  generally 
held  that  the  accused  may  commit  a  forgery  by  procuring  another 
to  do  the  writing.^*^  And  where  one  was  present,  knowing  of  and 
asserting  to  the  commission  of  a  forgery,  of  which  he  was  to  derive 
the  benefit,  it  was  held  that  the  jury  might  infer  that  it  was  done  by 
his  procurement.^*^  But  evidence  showing  that  the  accused  acted 
for  another,  although  the  authority  so  to  act  was  falsely  and  fraudu- 
lently assumed,  is  of  itself  insufficient  to  establish  a  forgery  by  the 
accused.^**     There  is  sufficient  evidence  of  intent  to  defraud  by  the 

'"  Hobbs  v.  State,  75  Ala.  1;  Com-  293;  see  also  authorities  cited  in  last 

monwealth     v.      Talbot,     2     Allen  note,  supra. 

(Mass.)   161;   State  v.  Britt,  3  Dev.  "^  Ryan  v.   Rockford   Ins.    Co.,   85 

L.  (N.  Car.)  122.  Wis.  573,  55  N.  W.  1025. 

^=^  State  v.  Beasley,  84  Iowa  83,  50  '*=  Commonwealth    v.    Foster,    114 

N.  W.  570.  Mass.  311,  19  Am.  R.  353;   Koch  v. 

"»  State  V.  Rucker,  93  Mo.  88,  5  S.  State,  115  Ala.  99,  22  So.  471. 

W.  609 ;   Spencer  v.  Commonwealth,  "^  Commonwealth    v.    Stevens,    10 

2  Leigh  (Va.)  751;  Bland  v.  People,  Mass.  181. 

4   111.   364;    State  v.    Poindexter,   23  ^"Commonwealth   v.    Baldwin,   11 

W.  Va.  805;  but  see.  Commonwealth  Gray  (Mass.)   197;   Mann  v.  People, 

V.  Parmenter,  5  Pick.  (Mass.)  279.  15  Hun  (N.  Y.)  155;   People  v.  Ben- 

""  State   v.   Morgan,   35    La.   Ann.  dit,  111  Cal.  274,  43  Pac.  901;  Kegg 


275  VARIANCE.  [§  2998. 

defendant  where  an  instrument  in  question  was  forged  and  was  made 
payable  to  him  and  he  indorsed  iV*^  But  where  all  the  evidence 
against  the  accused  was  given  by  an  expert  on  handwriting,  who  by 
a  comparison  with  the  genuine  writing  of  the  accused  stated  that  in 
his  opinion  the  face  of  the  check  was  written  by  the  accused,  it  was 
held  that  such  testimony  was  not  sufficient  to  sustain  a  conviction, 
even  if  the  words,  "face  of  the  check"  included  the  signature.^*°  A 
charge  of  an  intent  to  defraud  generally  is  sustained  by  proof  that 
the  name  signed  to  the  forged  instrument  was  that  of  a  fictitious 
person.^*^  On  a  prosecution  for  having  in  possession,  with  intent  to 
pass  them,  bank  notes  purporting  to  have  been  issued  by  a  foreign 
banking  corporation,  proof  of  a  general  character  of  the  existence  of 
the  bank  is  sufficient  and  it  is  not  necessary  to  put  the  original  charter 
in  evidence  or  to  produce  the  law  under  which  the  bank  is  incorpo- 
rated, but  it  may  be  shown  by  parol  evidence.^**  Proof  of  the  crime 
is  sufficient  without  any  proof  as  to  actual  damages."^  As  already 
shown,  the  credibility  of  witnesses  is  for  the  jury  and  it  is  for  the 
jury  to  weigh  the  evidence.  But  the  jury  must,  of  course,  have  some 
sufficient  legal  evidence  to  act  on  before  a  verdict  of  guilty  can  be 
sustained.  It  is  held  that  the  interest  of  an  obligor  on  a  forged 
instrument  may  be  shown  to  affect  the  credibility  of  his  testimony.^^" 

.  §  2998.  Variance. — The  general  rule  is  that  the  proof  as  to  the 
contents  and  description  of  the  instrument  forged  must  correspond 
in  material  respects  to  the  description  given  in  the  indictment,  and 
while  a  slight  variance  is  not  always  fatal  and  something  may  depend 

V.  State,  10  Ohio  75;   State  v.  Mill-        "'People   v.    Fitch,   1   Wend.    (N. 

ner,  131  Mo.  432,  33  S.  W.  15.  Y.)  198,  19  Am.  Dec.  477;  Common- 

'"Timmons  v.  State,  80  Ga.  216,  4  wealth  v.  Ladd,  15   Mass.   526;    Ar- 

S.  E.  766.  nold  v.  Cost,  3  Gill  &  J.   (Md.)   219, 

""People  V.  Mitchell,  92  Cal.  590,  22  Am.  Dec.  302;  People  v.  Brigham, 

27  Pac.  597.  2  Mich.  550;  see  also,  Scott  v.  State, 

"^Johnson   v.    State,    35   Tex.   Cr.  40  Tex.  Cr.  App.  105,  48  S.  W.  523; 

App.  271,  33  S.  W.  231.  State  v.  Duffield,  49  W.  Va.  274,  38 

i«  People  V.  Davis,  21  Wend.    (N.  S.  E.  577,  but  it  has  been  held  error 

Y.)  309;  People  V.  Chadwick,  2  Park,  to  admit  such  evidence.    People  v. 

Cr.  Cas.  (N.  Y.)  163;  People  v.  D'Ar-  Phillips,  70  Cal.  61,  11  Pac.  493;  Ar- 

gencour,  95  N.  Y.  624;  State  v.  Wil-  nold  v.  Cost,  3  Gill  &  J.  (Md.)  219, 

liams,  152  Mo.  115,  53  S.  W.  424;  see  22  Am.  Dec.  302. 
also.  People  v.  Ah  Sam,  41  Cal.  645;         ""State  v.  Henderson,  29  W.  Va. 

Commonwealth    v.    Carey,    2    Pick.  147. 
(Mass.)  47. 


§  2998.] 


FORGERY. 


276 


upon  the  manner  in  which  the  instrument  is  pleaded  in  the  indictment 
or  information,  yet  if  there  is  a  material  variance  between  the  plead- 
ing and  the  proof  in  this  respect  it  will  generally  be  fatal.^"  There 
is  some  conflict,  however,  as  to  what  constitutes  a  material  variance, 
and  some  of  the  courts  have,  perhaps,  been  too  much  inclined  to  hold 
a  very  slight  variance  material.  Thus,  it  has  been  held  that  the 
misspelling  of  the  alleged  forged  name  as  proved  or  reversing  the 
order  of  names  are  material  variances  and  are  fatal  when  the  writings 
were  pleaded  according  to  their  tenor.^^^  So,  also,  omission  of  a 
final  letter  from  the  alleged  forged  name  as  proved  has  been  held  a 
material  and  fatal  variance  between  the  alleged  forged  writing  as 
proved  and  as  set  forth  in  the  indictment.^^^  So,  likewise,  has  the 
omission  of  a  single  figure  from  the  amount.^ ^*  Many  cases,  however, 
disregard  such  seemingly  unimportant  variances  and  hold  the  evidence 
sufficient  notwithstanding  such  a  variance  appears.^^^  So  it  has  been 
held  that  the  fact  that  the  writing  proved  was  acknowledged  while 
that  set  out  in  the  indictment  was  not,  is  not  a  material  and  fatal 
variance  such  as  to  make  the  proof  insufficient.^^^  It  has  also  been 
held  that  an  allegation  of  an  intent  to  defraud  several  persons  is 
sustained  by  proving  an  intent  to  defraud  any  one  of  them.^^' 


"1  State  V.  Pease,  74  Ind.  263,  and 
authorities  cited  in  following  notes. 

'^'Westbrook  v.  State,  23  Tex. 
App.  401,  5  S.  W.  248;  McClellan  v. 
State,  32  Ark.  609;  State  v.  Wood- 
row,  56  Kan.  217,  42  Pac.  714;  State 
V.  Lane,  80  N.  Car.  407;  State  v. 
Harrison,  69  N.  Car.  143. 

ii3  Burress  v.  Commonwealth,  27 
Gratt.  (Va.)  934. 

'"  Burress  v.  Commonwealth,  27 
Gratt.  (Va.)  934. 

^=»Garmire  v.  State,  104  Ind.  444, 
4  N.  E.  54;  Roush  v.  State,  34  Neb. 


325,  51  N.  W.  755;  State  v.  Gryder. 
44  La.  Ann.  962,  11  So.  573;  State  v. 
Lane,  80  N.  Car.  407;  State  v.  Davis, 
69  N.  Car.  313;  Cross  v.  People,  47 
111.  152;  State  v.  Hastings,  53  N.  H. 
452;  Agee  v.  State,  117  Ala.  169,  23 
So.  486;  Commonwealth  v.  Woods, 
10  Gray  (Mass.)  477. 

"« People  V.  Baker,  100  Cal.  188,  34 
Pac.  649;  Lassiter  v.  State,  35  Tex. 
Cr.  App.  540,  34  S.  W.  751. 

'"  McDonnell  v.  State,  58  Ark.  242, 
24  S.  W.  105;  see  also.  State  v.  Da- 
vis, 69  N.  Car.  313. 


CHAPTEK  CXLIV. 


GAMBLING. 


Sec.  Sec. 

2999.  Generally.  3005. 

3000.  The  wager  or  stake. 

3001.  Publicity  of  the  game.  3006. 

3002.  Manner  of  playing.  3007. 

3003.  Statutes  as  to  prima  facie  evi-  3008. 

dence.  3009. 

3004.  Circumstantial    e  v  i  d  e  n  c  e —  3010. 

Other  offenses.  3011. 


Gambling  instruments  in  evi- 
dence. 
Accomplices  and  accessories. 
Variance. 

Common  gamblers. 
Keeping  gambling  house. 
Minors  playing. 
Lotteries. 


§  2999.  Generally. — Gaining  or  gambling  has  been  defined  as  "an 
unlawful  agreement  between  two  or  more  persons  to  risk  money  or 
property  on  a  contest  or  chance  of  any  kind  where  one  must  be  the 
gainer  and  the  other  the  loser."^  There  is  said  to  be  a  distinction  be- 
tween the  terms  "betting"  and  "gaming ;"  the  former  being  broader, 
and  including  the  laying  of  a  wager  on  any  event,  whereas  the  latter 
applies  technically  only  to  the  paying  of  a  wager  upon  some  game.- 
Gaming  in  itself,  when  not  such  as  to  constitute  a  nuisance,  was  not  a 
crime  at  common  law.^  But  keeping  a  gaming  house  was  indictable  at 
common  law,  and  there  are  statutes  in  many  of  the  states  making  it  a 


^Hughes  Cr.  L.  &  Proc,  §  2193; 
see  also,  Ansley  v.  State,  36  Ark.  67, 
38  Am.  R.  29;  Portis  v.  State,  27 
Ark.  360;  State  v.  Shaw,  39  Minn. 
153,  39  N.  W.  305;  Harrison  v.  State, 
4  Coldw.  (Tenn.)  198;  Bubanks  v. 
State,  3  Heisk.  (Tenn.)  488,  490; 
Bell  V.  State,  5  Sneed  (Tenn.)  507; 
"gaming  is  the  act  of  persons  who 
engage  in  playing  a  game  for 
stakes."  1  Abbott  L.  Diet.  529. 
"Gambling  is  the  risking  of  money 
or  anything  of  value  between  two 
or  more  persons  on  a  contest  of 
chance    of    any    kind,    where    one 


must  be  the  loser  and  the  other  the 
gainer."  State  v.  Grimes,  74  Minn. 
2R7,  77  N.  W.  4,  5.  "But  it  has  been 
held  unnecessary  that  both  parties 
should  "stand  to  lose"  as  well  as  to 
win.  Lang  v.  Merwin,  (Me.)  59  Atl. 
1021;  Horner  v.  United  States,  147 
U.  S.  449,  13  Sup.  Ct.  409. 

=  People  V.  Weithoff.  51  Mich.  203, 
210.  16  N.  W.  442,  47  Am.  R.  557. 

^Bell  V.  Norwich.  3  Dyer  254b; 
Sherbon  v.  Colebach.  2  Vent.  175; 
Greenhuff's  Case.  2  Swinton  236;  1 
Bishop  Cr.  Law,  §  504;  Bishop  Stat. 
Cr.,  §  847. 


277 


2999.] 


GAMBLING. 


278 


criminal  offense  to  bet  on  elections,  horse  racing  and  the  like,  and  to 
keep  or  rent  houses  for  the  purpose  of  gaming.*  To  constitute  gaming 
in  the  technical  sense,  it  is  necessary  that  there  should  be  a  game  upon 
which  the  wager  is  laid.^  A  wager  of  some  kind  is  an  essential  element 
of  the  offense"  and  so  is  the  element  of  chance  or  hazard.'^  Betting  on 
an  election  has  been  held  not  to  be  gaming,*  although  it  is  punishable 
as  an  offense  under  specific  statutes  in  many  states.  Betting  on  a 
horse-race  has  also  been  held  not  to  be  gaming  in  some  jurisdictions," 
but  the  weight  of  authority,  at  least  under  many  of  the  statutes,  is 
probably  to  the  contrary.^"  "A  game  of  chance,"  it  is  said,  "^may  be 
defined  as  one  in  which  the  result  is  determined  by  luck  or  lot,  and 
not  by  adroitness,  practice,  skill,  or  judgment  in  play,  such  as,  for 
example,  cards,  dominoes,"  bagatelle,^^  bowls,^^  ^^.^gg  ball,"  dice 
throwing,^^  or  keno.^"  Such  games  are  gambling  when  played  for 
money  or  other  valuable  thing." ^^    It  is  doubtful,  however,  if  all  of 


^  See,  Bishop  Stat.  Cr.,  §§  844-881, 
934,  et  seq.  So  as  to  lotteries. 
Bistiop  Stat.  Cr.,  §  951,  et  seq.;  see 
also,  Horner  v.  United  States,  147 
U.  S.  449,  13  Sup.  Ct.  409. 

=  People  V.  Weithoff,  51  Mich.  203, 
16  N.  W.  442,  47  Am.  R.  557;  Smoot 
V.  State,  18  Ind.  18. 

« Reg.  V.  Ashton,  1  El.  &  Bl.  286,  72 
E.  C.  L.  286;  Ansley  v.  State,  36  Ark. 
67,  38  Am.  R.  29;  State  v.  Hope,  15 
Ind.  474;  Carr  v.  State,  50  Ind.  178; 
People  V.  Carroll,  80  Cal.  153,  22 
Pac.  129;  State  v.  Quaid,  43  La.  Ann. 
1076,  10  So.  183;  Martin  v.  State,  71 
Miss.  87,  14  So.  530. 

"Lee  Tong,  In  re,  18  Fed.  253; 
Scate  V.  Quaid,  43  La.  Ann.  1076,  10 
So.  183;  Wortham  v.  State,  59  Miss. 
179;  Harris  v.  White,  81  N.  Y.  539; 
State  V.  Smith,  Meigs  (Tenn.)  99, 
33  Am.  Dec.  132;  but  see  under  Iowa 
statute.  State  v.  Miller,  53  Iowa  154, 
4  N.  W.  900. 

^  State  V.  Smith,  Meigs  (Tenn.) 
99,  33  Am.  Dec.  132;  Hickerson  v. 
Benson,  8  Mo.  11,  40  Am.  Dec.  118; 
State  V.  Henderson,  47  Ind.  127; 
M'Hattan  v.  Bates,  4  Blackf.  (Ind.) 


63;  but  see,  Frazee  v.  State,  58  Ind. 
8;  Sharkey  v.  State,  33  Miss.  353; 
Commonwealth  v.  Wells,  110  Pa.  St. 
463,  1  Atl.  310. 

"State  V.  Rorie,  23  Ark.  726; 
Cheek  v.  Commonwealth,  79  Ky. 
359;  Commonwealth  v.  Shelton,  8 
Gratt.  (Va.)  592. 

"  Stone  V.  Clay,  10  C.  C.  A.  147,  61 
Fed.  889;  Cheesum  v.  State,  8 
Blackf.  (Ind.)  332,  44  Am.  Dec.  771: 
State  V.  Shaw,  39  Minn.  153,  39  N. 
W.  305;  Edwards  v.  State,  8  Lea 
(Tenn.)  411. 

"  Harris  v.  State,  31  Ala.  362. 

"  Neal  v.  Commonwealth,  22  Gratt. 
(Va.)  917,  919. 

''  Commonwealth  v.  Coding,  3 
Mete.  (Mass.)  130. 

"Mace  V,  State,  58  Ark.  79,  22  S. 
W.  1108;  People  v.  Weithoff,  51 
Mich.  203,  209,  212.  16  N.  W.  442,  47 
Am.  R.  557. 

"  State  V.  DeBoy,  117  N.  Car.  702, 
23  S.  E.  167;  Jones  v.  State,  26  Ala. 
155. 

^o  Miller  v.  State,  48  Ala.  122. 

"  Underhill  Cr.  Ev.,  §  471. 


279  WAGER  OB  STAKE.  [§    3000. 

these  things  would  be  held  to  be  gambling  in  all  jurisdictions.   Much 
depends  upon  the  particular  statutes. 

§  3000.  The  wager  or  stake. — The  prosecution  must  prove  that  a 
bet  or  wager  was  made,  whether  the  game  be  one  of  chance  or  skill,^® 
and  that  the  stake  had  some  value  intrinsically,  or,  by  agreement  of  the 
parties,  represented  value.^^  But  if  the  defendant  made  the  wager 
it  is  not  essential  that  he  should  have  been  one  of  the  players  of  the 
game  where  the  statute  prohibits  wagering  or  betting  on  such  a 
game,-"  and  the  amount  and  character  of  the  things  wagered  are 
immaterial.2^  Thus,  it  may  bo  for  chips  or  checks,^^  to  determine 
who  shall  treat  or  for  the  price  of  refreshments,-^  or,  in  some  juris- 
dictions, for  the  hire  of  the  table  or  the  like.^*  But  the  contrary  has 
been  held  in  some  jurisdictions  as  to  playing  merely  where  tlie  loser  i:^ 
to  pay  for  the  use  of  the  table.-^  The  wager  may  be  inferred  from  au 
offer  and  acceptance,  and  neither  of  these  need  be  proved  to  have  been 
made  in  express  terms,  but  may  be  inferred  from  conduct  and  circum- 
stances.-^ Thus,  it  "may  be  inferred  by  the  jury  from  evidence  that 
the  accused  placed  money  or  chips  upon  a  table  where  a  game  was  in 
progress,  without  objection  from  other  players,"  or  stated  he  would 

"Middaugh  v.  State,  103  Ind.  78.  2    Swan.     (Tenn.)     287,    290,    291; 

80,  2  N.  E.  292;   Jackson  v.   State,  Commonwealtli   v.   Taylor,   14  Gray 

(Tex.  Cr.  App.)  25  S.  W.  773.  (Mass.)  26;  Brown  v.  State,  49  N.  J. 

'« Oder  v.  State,  26  Fla.  520,  522,  L.  61,  7  Atl.  340. 

7  So.  856;   State  v.  Bishel,  39  Iowa  =*Hall  v.   State,    (Tex.   Cr.   App.) 

42.  34  S.  W.  122;  Alexander  v.  State,  99 

=°See,  Bone  v.  State,  63  Ala.  185;  Ind.  450,  451;  Hamilton  v.  State,  75 

Flynn  v.  State,  34  Ark.  441;  Quarles  Ind.  586,  587;  Bachellor  v.  State,  10 

T.    State,    5    Humph.    (Tenn.)    561;  Tex.    258,    261;     State    v.    Book,    41 

Commonwealth  v.  Shelton,  8  Gratt.  Iowa  550,  20  Am.  R.  609;   Ward  v. 

(Va.)   592.  State,  17  Ohio  St.  32. 

=^Marston  v.  Commonwealth,  18  B.  =^  Harbaugh  v.  People,  40  111.  294; 

Mon.  (Ky.)  485;  Walton  v.  State,  14  State   v.    Quaid,   43   La.   Ann.    1076, 

Tex.  381;  Cain  v.  State,  13  Smed.  &  10  So.  183;  State  v.  Hall,  32  N.  J.  L. 

M.  (Miss.)   456;  Hitchins  v.  People,  158,  165;   People  v.  Forbes,  52  Hun 

39  N.  Y.  454;  Ford  v.  State,  (Miss.)  (N.  Y.)  30,  22  N.  Y.  St.  278,  4  N.  Y. 

38  So.  229.  S.   757;    Blewett  v.   State,   34   Miss. 

2=  Porter  v.  State,  51  Ga.  300,  301;  606. 

Ransom  v.  State,  26  Fla.  364,  7  So.  =»  Emmons  v.   State,   34   Tex.   Cr. 

860.  App.  98,  29  S.  W.  474,  475;   State  v. 

2»  State  V.  Wade,   48  Ark.   77,   51  Welch,  7  Port.  (Ala.)  463. 

Am.   R.    560;    People   v.   Cutler,    28  "Thompson  v.  State,  99  Ala.  173, 

Hun    (N.  Y.)    465,  466;    Hitchins  v.  13  So.  753. 
State,  39  N.  Y.  454;  Walker  v.  State, 


§•   3001.]  GAMBLING.  280 

pay  the  amount  wagered  after  the  game  was  ended,^^  and  even  from 
evidence  that  the  accused  was  sitting  and  playing  at  a  table  upon  which 
money  and  gambling  devices,  such  as  cards  and  a  faro  box,  were 
lying."'^  But  it  has  been  held  that  a  charge  of  winning  an  article  of 
value  upon  a  game  or  wager  is  not  sustained  by  evidence  merely  to 
the  effect  that  the  defendant  played  a  game  of  pool  with  another  and 
that  the  latter  lost  the  game  and  paid  for  it.^" 

§  3001.  Publicity  of  the  game. — Publicity  must  be  shown  in  prose- 
cutions under  some  of  the  statutes.  It  has  been  held  that  the  court 
cannot  take  notice  that  certain  places  are  public,  under  a  statute  which 
forbids  gambling  in  public  places.^^  Whether  a  game  or  sport  is  pub- 
lic, is  usually  a  question  for  the  jury  to  determine  from  the  circum- 
stances, but  much  depends  upon  the  meaning  of  that  term  as  used  in 
the  particular  statute.  "Evidence  that  a  game  was  carried  on  in  a 
shop,^^  or  public  road,^^  in  the  office  of  a  physician,^*  magistrate,^**  or 
broker,^"  aboard  a  steamer  in  a  navigable  stream,^''  or  in  a  barn,^^  will 
sustain  an  allegation  that  a  game  was  played  in  public."^^  So,  evidence 
that  it  was  carried  on  in  the  jury  room  in  a  court  house,*"  in  a  road  or 
path  in  common  use,*^  or  the  like,*-  has  been  held  sufficient.  But  in 
other  cases,  places  similar  in  most  respects  to  some  of  those  mentioned 
have  been  held  not  to  be  public  within  the  meaning  of  the  statute.*^ 

=«  State  v.  Leicht,  17  Iowa  28.  ^*  Williams  v.  State,   (Tex.)   34  S. 

^Underbill  Cr.  Ev.,  §  473;    State  W.   271;    Redditt   v.    State,   17   Tex. 

V.  Andrews,  43  Mo.  470,  471;    State  610. 

V.  Boyer,  79  Iowa  330,  44  N.  W.  558;  ^Burnett  v.  State,  30  Ala.  19. 

St.    Louis   v.    Sullivan,   8    Mo.   App.  '"Wilson  v.  State,  31  Ala.  371. 

455,    457,    458;    Cohen    v.    State,    17  ^Dickey  v.  State,  68  Ala.  508. 

Tex.  142.    Evidence  that  other  per-  '^  Huffman  v.  State,  29  Ala.  40. 

sons,   present   with   the   accused   in  ^  Underhill  Cr.  Ev.,  §  473;   Nuek- 

the  room  where  gambling  is  alleged  ols  v.  State,  109  Ala.  2,  19  So.  504; 

to  have  taken  place,  were  playing  or  see  also,  Downey  v.  State,  110  Ala. 

betting,  is  relevant;  and  perhaps  in-  99,  20  So.  439;   Gomprecht  v.  State, 

dispensable,  as  the  defendant  could  36  Tex.  Cr.  App.  434,  37  S.  W.  734. 

not  play  a  game  alone  or  bet  with  *"  Wilcox  v.  State,  26  Tex.  145. 

himself.    Thompson  v.  State,  99  Ala.  ^' Mills  v.  State,  20  Ala.  86;   Hen- 

173,  13  So.  753,  754.  derson  v.  State,  59  Ala.  89. 

""Middaugh  v.  State,  103  Ind.  78,  «  Langrish  v.  Archer,  L.  R.  10  Q. 

2  N.  E.  292.  B.   44,   15   Cox   Cr.   Cas.   194;    Skin- 

'1  Grant  v.  State,  33  Tex.  Cr.  App.  ner  v.  State,  30  Ala.  524;   Dennis  v. 

527,  27  S.  W.  127.  State,  139  Ala.  109,  35  So.  651. 

'"  Bentley  v.  State,  32  Ala.  596.  "  Windsor    v.     Commonwealth,     4 

''Mills  v.  State,  20  Ala.  86.  Leigh  (Va.)  680;  McCauley  v.  State, 


V 


281  JUDICIAL    NOTICE — EXPERT    EVIDENCE.       [§§    3002,    3003. 

§  3002.  Manner  of  playing — Expert  evidence.— Tlie  courts  will 
not,  as  a  general  rule,  take  judicial  notice  of  the  character  of  a  par- 
ticular game  and  the  manner  in  which  it  is  played,**  and  a  jury  can- 
not well  be  presumed  to  know  how  an  unlawful  game  is  played.  But 
where  the  game  is  specifically  prohibited  by  statute,  the  courts  will 
usually  take  judicial  notice  of  the  meaning  of  the  terms  used,  or  the 
unlawful  nature  of  such  games.*^  The  manner  of  playing  may  be  ex- 
plained to  the  jury  by  professional  players  as  expert  witnesses.*^  But 
such  testimony  is  not  indispensable.  Any  witness  may  describe  a 
game  he  has  seen,  though  he  has  played  or  seen  it  played  only  a  few 
times."  The  extent  of  his  knowledge  and  experience  goes  to  the 
weight  of  his  testimony  rather  than  to  his  competency,  and  is  relevant 
to  lessen  or  increase  the  weight  of  his  evidence.*^  But  it  has  been  held 
that  a  book  on  such  games  is  not  admissible,  although  a  witness  could 
use  it  to  illustrate  his  testimony.*^ 

§  3003.  Statutes  as  to  prima  facie  evidence. — Statutes  exist  in 
many  states  declaring  that  certain  facts  shall  be  prima  facie  evidence 
of  gaming  or  keeping  or  renting  a  house  for  the  purpose  of  gaming. 
Such  statutes  have  generally  been  upheld  as  constitutional.^"  Thus,  a 
statute  declaring  that  the  fact  of  gaming  being  carried  on  in  the  house, 

26   Ala.   135;    Burdine   v.    State,   25         '*  In  one  case  it  was  held  that  a 

Ala.  60;  ClarKe  v.  State,  12  Ala.  492;  witness  may  testify  he  saw  the  de- 

Bledsoe  v.   State,   21    Tex.   223;    see  fendant  conduct  a  game  for  money, 

also.  State  v.  Kyer,   (W.  Va.)   46  S.  describing  it  in  detail,  and  that  an- 

W.  694.  other  witness  may  then  state  it  was 

"  Commonwealth    v.     Monarch,    6  a   certain    game,    though   the   latter 

Bush  (Ky.)  298;  State  v.  Sellner,  17  may  have  seen  the  game  played  only 

Mo.  App.  39.  a  few  times.   People  v.  Sam  Lung,  70 

«Lohman    v.    State,    81    Ind.    15;  Cal.  515,  11  Pac.  673;  but  see.  People 

State  v.  Burton,  25  Tex.  420;   State  v.  Gosset,  93  Cal.  641,  29  Pac.  246; 

V.  Price,  12  Gill  &  J.   (Md.)  260.  People    v.    Carroll,    80    Cal.    153,    22 

"Commonwealth    v.    Adams,    160  Pac.  129. 
Mass.    310,    35    N.    W.    581;    Hall   v.         ""People  v.  Gosset,  93  Cal.  641.  29 

State,  6  Baxt.  (Tenn.)  522;   State  v.  Pac.  246. 
Behan,   (La.)   37  So.  607.  ""Voght  v.  State,  124  Ind.  358.  24 

"Nuckolls   V.    Commonwealth,    32  N.  E.  680;  Commonwealth  v.  Smith. 

Gratt.    (Va.)    884;    see  also.  Hall  v.  166  Mass.  370,  44  N.  E.  503;  People 

State,  6  Baxt.   (Tenn.)   522;     People  v.   Adams,  176  N.  Y.  351,   68  N.  E. 

V.  Gosset,  93  Cal.  641,  645,  29  Pac.  636,  63  L.  R.  A.  406,  aff'd  in,  192  U. 

246;    Miller    v.    Commonwealth,    25  S.  585,  24  Sup.  Ct.  372. 
Ky.  L.  R.  1236,  1931,   77   S.  W.  682, 
79  S.  W.  250. 


§    3004.]  GAMBLING.  383 

and  knowledge  thereof  on  the  part  of  the  lessee  or  owner  without  tak- 
ing any  steps  to  prevent  it,  shall  constitute  sufficient  evidence  that  it 
was  rented  for  such  purpose,  has  been  held  constitutional. -'^  So,  a 
statute  proving  that  if  any  of  the  implements,  devices  or  apparatus 
commonly  used  in  games  of  chance  usually  played  in  gambling  houses, 
or  by  gamblers,  are  found  in  the  house,  it  shall  be  prima  facie  evi- 
dence that  such  house  is  kept  for  gaming,  has  been  held  constitu- 
tional. ^^ 

§  3004.  Circumstantial  evidence — Other  offenses. — Circumstantial 
as  well  as  direct  evidence  is  admissible  in  prosecutions  under  the  va- 
rious gaming  statutes,  and,  indeed,  it  often  happens  that  the  guilt  of 
the  accused  can  be  shown  in  no  other  way.^^  Other  offenses,  such  as 
gambling  in  the  place  in  question  at  other  times  or  the  like,  may  be 
shown  upon  the  question  of  knowledge  and  intent,  design  or  purpose 
for  which  the  establishment  is  kept,  and  to  illustrate  its  nature.^* 
Thus,  it  is  held  in  a  recent  case  that  in  the  trial  of  a  prosecution  for 
keeping  a  banking  game,  the  state  may  prove  that  the  defendant  dealt 
faro  in  the  same  place  within  two  weeks  immediately  preceding  the 
date  charged  in  the  information,  for  the  purpose  of  showing  the 
character  of  the  house  and  the  guilty  knowledge  of  defendant.^^  It 
is  not  necessary  to  prove  a  winning  or  losing  by  direct  evidence  of 
actual  observation,  but  gaming  may  be  inferred  from  circumstances,^^ 
and  it  has  been  held  that  evidence  that  persons  with  money  and  "chips" 
on  a  table  before  them  behaved  in  the  manner  of  persons  engaged  in  a 
well-known  gambling  game  will  justify  their  conviction  for  gaming." 
So,  evidence  that  the  room  in  which  gambling  was  conducted  and  in 

"  Morgan  v.  State,  117  Ind.  569,  17  111.    465,    469;     Miller    v.    Common- 

N.  E.  154.  wealth,   13   Bush    (Ky.)    737;    Clark 

=^Wooten  V.   State,  24  Fla.  335,  1  v.  State,  47  N.  J.  L.  556,  4  Atl.  327. 

L.  R.  A.  819.  But,  otherwise,  the  general  rule  ap- 

=^  See,  State  v.  Boyer,  79  Iowa  330,  plies  that  independent  offense  can- 

44  N.  W.  558;  State  v.  Andrews,  43  not   be    shown.     Wickard    v.    State, 

Mo.  470;  St.  Louis  v.  Sullivan,  8  Mo.  109  Ala.  45,  19  So.  491;  Goldstein  v. 

App.  455;  Robbins  v.  People,  95  111.  State,  (Tex.  Cr.  App.)  35  S.  W.  289. 

175;  Hamilton  v.  State,  75  Ind.  586;  =>=^  State  v.  Behan,  (La.)  37  So.  607. 

McAlpin  V.  State,  3  Ind.  567.  '^'^  McAlpin    v.    State,    3    Ind.    567; 

^Toll  V.  State,  40  Fla.  169,  23  So.  Voght  v.  State,  124  Ind.  358,  24  N.  E. 

942;    Commonwealth   v.   Ferry,    146  680;   Hamilton  v.  State,  75  Ind.  586. 

Mass.  203,  209,  15  N.  E.  484;    State  =' Neeld  v.  State,  25  Ind.  App.  603, 

V.  Czarnikow,  20  Ark.  160;  see  also,  58  N.  E.  734.     But  see  Fallwell  v. 

as  to  lotteries,  Dunn  v.  People,  40  State,  (Tex.  Cr.  App.)  85  S.  W.  1069. 


283  GAMBLIXG    INSTRUMENTS.  [§    3005. 

which  the  defendant  stored  goods  was  connected  with  the  main  room 
of  the  building  which  the  defendant  leased  for  his  store ;  that  a  door 
opened  from  the  store  into  the  room,  of  which  the  defendant  alone 
had  the  key ;  that  he  opened  it  when  requested ;  that  it  was  necessary  to 
ask  permission  of  him  to  enter ;  was  sufficient  to  show  that  defendant 
was  the  lessee  and  occupant  of  the  room,  within  the  Mississippi  statute, 
forbidding  owners,  lessees,  or  occupants  of  any  building  to  permit 
gaming  to  be  carried  on  therein.^** 

§  3005.  Gambling  instruments  in  evidence. — Gambling  instru- 
ments and  devices  employed  in  playing  illegal  games  arc  admissible, 
if  properly  identified  and  connected  with  the  accused.^'^  As  shown  in 
another  section,  they  are  sometimes  made  prima  facie  evidence  by  stat- 
ute. So,  by  statute  in  some  jurisdictions  the  seizure  of  articles  used 
for  gambling  purposes,  as  tables,  cards,  and  the  like,  is  authorized.*'" 
It  is  generally  held  that  they  cannot  be  confiscated  or  destroyed  with- 
out due  notice  to  their  owner  and  an  opportunity  for  him  to  be  heard 
and  to  prove  their  lawful  character  in  judicial  proceedings,''^  but  the 
method  by  which  the  prosecution  has  acquired  them  does  not  prevent 
their  use  as  evidence  in  a  proper  case  upon  the  grovmd  that  the  accused 
is  protected  by  the  constitution  from  being  compelled  to  furnish  evi- 
dence against  himself.^^  In  a  recent  case,  where  the  defendant  was 
charged  with  keeping  a  gaming  house,  there  was  evidence  that  at  the 
time  of  his  arrest  he  was  in  possession  of  gambling  devices,  and  they 
were  held  properly  admitted  in  evidence,  the  court  having  instructed 
that  this  testimony  should  be  considered  only  to  show  that  the  property 
in  question  was  in  defendant's  possession,  and  that  he  could  not  be  con- 
victed on  testimony  that  he  was  the  keeper  of  the  place  after  the  time  of 
the  issuing  of  the  warrant,  or  on  any  testimony  showing  that  the  place 
described  in  the  information  was  a  gaming  house  after  the  time  of 
issuing  the  warrant.®^  But  on  a  prosecution  under  the  New  York  stat- 

" Ford  V.  State,  (Miss.)  38  So.  229.  (Neb.)    99   N.  W.   505,   65   L.   R.   A. 

°»  People  V.  Sam  Lung,  70  Cal.  515,  610. 

517,  11  Pac.  673.  "  Commonwealth     v.     Smith,     166 

•"Ridgeway  v.  West,  60  Ind.  371;  Mass.   370,   44   N.   E.    503;    State  v. 

Commonwealth    v.    Gaming    Imple-  Pomeroy,  130  Mo.  489,  32  S.  W.  1002; 

ments,   119   Mass.   332,  65   L.  R.   A.  see  also,  Woods  v.  Cottrell,  55  W.  Va. 

611,  616.  476,  47  S.  E.  275,  65  L.  R.  A.  616. 

"State  V.   Robbins,  124  Ind.  308,  «^  State    v.    Harmon,    (Kans.)     78 

24  N.  E.  978;   Lowry  v.  Rainwater,  Pac.  805. 
70  Mo.  152;  McConnell  v.  McKillip, 


§§  3006,  3007.]  GAMBLING.  284 

■Qte  for  receiving  and  recording  money  on  a  bet  on  a  horse  race,  where 
the  prosecuting  witness  testified  that  at  the  place  where  the  offense 
occurred  there  were  placards  on  the  wall  stating  the  name  of  the  horses 
which  were  to  compete  in  certain  races,  it  was  held  that  placards  taken 
from  defendant  at  the  time  of  his  arrest,  containing  what  might  be 
inferred  to  be  the  names  of  race  horses,  were  not  admissible  against 
the  defendant,  without  proof  as  to  whether  the  cards  were  used  or  to 
be  used  upon  a  race  course,  even  though  they  were  similar  to  the 
placards  on  the  wall  of  the  alleged  poolroom,  and  were  intended  to  be 
used  in  the  registration  of  bets.®* 

§  3006.  Accomplices  and  accessories. — The  question  as  to  whether 
a  conviction  may  be  had  in  criminal  cases  upon  the  uncorroborated 
evidence  of  an  accomplice  or  accessory  has  already  been  considered. 
But  the  rules  governing  such  evidence  in  gambling  cases  depend 
largely  upon  the  statute  in  the  particular  jurisdiction.  Thus,  in  some 
jurisdictions  a  conviction  may  be  had  upon  the  uncorroborated  evi- 
dence of  an  accomplice,®^  and  under  some  statutes  he  is  not  to  be  ex- 
cused from  testifying  because  his  evidence  may  tend  to  incriminate 
him,®"  where  he  is  granted  immunity  therefrom.  But  in  some  other 
jurisdictions  there  are  or  have  been  statutes  providing  that  no  con- 
viction shall  be  had  on  the  uncorroborated  testimony  of  an  accom- 
plice.®^ 

§  3007.  Variance. — It  is  not  essential,  as  a  rule,  that  the  state 
should  prove  that  the  offense  was  committed  on  the  precise  date 
charged.®^  But  it  must  be  shown  to  have  been  committed  before  the 
indictment  and  within  the  period  of  limitations.®®  It  is  not  necessary 
to  prove  that  all  the  money  or  property  charged  in  the  indictment  was 

"People  V.  Ebel,  98  App.  Div.  (N.  "Davidson  v.  State,  33  Ala.  350; 

Y.)  270,  90  N.  Y.  S.  628.     There  was  State  v.  Light,  17  Ore.  358,  21  Pac. 

no  evidence,  however,  of  the  latter  132. 

fact.  "'State  v.  Czarinkow,  20  Ark.  160; 

"'Wright   v.    State,    22    Tex.   App.  Cohen  v.  State,  32  Ark.  226;  Robin- 

670,  3  S.  W.  346.  son  v.  State,  77  Ga.  101;    Spratt  v. 

"■Cheesum    v.     State,     8     Blackf.  State,  8  Mo.  247;  Ramey  v.  State,  14 

(Ind.)    332,  44  Am.  Dec.  771;   War-  Tex.  409;   see  also,  Dennis  v.  State, 

ner  v.    State,    13    Lea    (Tenn.)    52;  139  Ala.  109,  35  So.  651. 

Kneeland  v.  State,  62  Ga.  396;  Ken-  ™  Winans  v.  State,  (Tex.  App.)  19 

drick  V.  Commonwealth,  78  Va.  490;  S.  W.  676;  State  v.  Waters,  1  Strob. 

see,  Moore  v.  State,  97  Ga.  759,  25  (S.  Car.)    59;   see  also,  Cochran  v. 

S.  E.  362.  State.  30  Ala.  542. 


285  COMMON   GAMBLERS,  [§    30U8. 

lost  or  won/''  but  it  must  generally  be  sbown  that  some  money,  article, 
or  thing  of  the  kind  charged  was  wagered  or  won  or  lost.'^^  It  has  been 
held  that  a  charge  that  the  defendant  lost  money  on  a  wager  is  not 
supported  by  evidence  that  he  and  another  lost  a  joint  bet/-  and  the 
same  court  has  held  that  where  the  charge  is  that  the  defendant  lost  a 
bet  with  two  or  more  persons,  evidence  that  the  winning  or  losing  was 
by  the  defendant  alone  and  with  only  one  of  such  persons  is  insuf- 
ficient.'^^  But  under  a  charge  of  keeping  a  room  for  gaming  it  has 
been  held  that  the  names  of  the  persons  who  gambled  therein  were 
immaterial.'^* 

§  3008.  Common  gamblers. — In  some  of  the  states  frequenting 
gaming  houses  is  a  criminal  offense,  and  statutes  exist  for  the  punisli- 
ment  of  those  who  habitually  frequent  gaming  houses,  or  engage  in 
gambling  as  a  livelihood,  as  common  gamblers.  It  has  been  held  under 
such  a  statute  that  the  evidence  must  show  that  the  defendant  engaged 
in  gambling  in  the  county  where  he  was  indicted,  and  that  evidence 
that  he  had  earned  his  living  by  gambling  at  other  places  is  not  suffi- 
cient if  the  evidence  shows  that  he  came  on  lawful  business  into  the 
county  where  he  is  being  prosecuted,  and  does  not  show  the  commission 
or  attempt  to  commit  any  unlawful  act  there. '^^  Evidence  of  a  single 
visit  to  a  gambling  house  is  generally  insufficient  to  sustain  a  convic- 
tion on  the  charge  of  frequenting  a  place  where  gambling  is  per- 
mitted.'^^ But  it  seems  that  it  may  be  sufficient  in  some  cases,  along 
with  other  evidence  or  under  particular  circumstances.'^^   The  evidence 

'"Parsons  v.  State,  2  Ind.  499;  Al-  held   inadmissible   without  account- 

exander  v.  State,  99  Ind.  450;  Bishop  ing  for  the  absence  of  the  writing. 

Stat.  Cr.,  §§  898,  899.  Frazee  v.  State,  58  Ind.  8. 

"Tate  V.   State,  5   Blackf.    (Ind.)  "=  Iseley  v.  State,  8  Blackf.   (Ind.) 

174;    Horton  v.    State,   13   Ark.    62;  403;  see  also,  Hany  v.  State,  4  Eng. 

Williams   v.    State,   12    Smed.   &    M.  (Ark.)  193. 

(Miss.)  58;  Bishop  Stat.  Cr.,  §  901;  "State  v.   Dole,   3   Blackf.    (Ind.) 

as  to  proving  the  particular  device  294;  for  variance  in  the  description 

alleged,  see,  Pemberton  v.  State,  85  of  the  building  held  not  to  be  fatal. 

Ind.    507;    see   also.   Commonwealth  see,  Commonwealth  v.  Coleman,  184 

V.  Coleman,  184  Mass.  198,  68  N.  E.  Mass.  198,  68  N.  E.  220. 

220;     Commonwealth    v.    Hodgkins,  '■■  Bowe  v.  State,  25  Ind.  415. 

170  Mass.  197,  49  N.  E.  97.  ""Green  v.   State.  109   Ind.   175.   9 

"Jackson    v.    State,    4    Ind.    560;  N.  E.  781;  De  Haven  v.  State.  2  Ind. 

Wilcox    V.    State,    7    Blackf.    (Ind.)  App.  376,  28  N.  E.  562. 

456;    in   one   case   where   a   written  "'Commonwealth    v.     Hopkins,     - 

memorandum    of    a   bet   was    made  Dana  (Ky.)  418. 
parol  evidence  of  its  contents  was 


§    3009.]  GAMBLING.  28(> 

should  show  that  the  defendant  frequented  the  house  for  the  purpose 
of  gambling. '^^  Proof  that  he  actually  gambled  while  he  was  there  is 
evidence  of  his  purpose  in  frequenting  the  place. '^'^  But  when  the  fact 
that  he  frequented  it  and  his  purpose  in  doing  so  are  otherwise  proved, 
it  is  not  necessary  to  prove  that  the  defendant  actually  engaged  in 
gambling.^"  His  purpose  of  gaming  may  be  inferred  from  circum- 
stances/^ and  evidence  that  during  the  period  in  question  he  visited 
and  gambled  with  cards  at  other  gaming  houses  in  the  same  neighbor- 
hood has  been  held  admissible  as  tending  to  prove  his  purpose  in  visit- 
ing the  particular  gambling  house.^^  It  has  also  been  held  that  a  man 
may  be  convicted  of  being  a  common  gambler  upon  evidence  that  he 
followed  that  occupation  in  a  room  kept  by  himself,  although  it  is  also 
proved  that  he  has  previously  been  convicted  of  keeping  a  gambling 
room  at  such  place.^^  But  it  has  been  held  that  one  cannot  be  con- 
victed of  being  a  common  gambler  on  mere  evidence  of  his  reputation 
as  such.^* 

§  3009.  Keeping  gambling  house. — Keeping  a  common  gaming 
house  was  a  criminal  offense  at  common  law,  and  it  is  now  a  statutory 
offense  in  most  jurisdictions.  Some  of  these  statutes  are  far  more 
comprehensive  than  the  common  law.  Evidence  that  the  defendant 
had  actual  custody  or  possession  of  a  public  gambling  house,  or  that 
he  derived  gain  or  profit  from  it,  is  relevant  and  may  justify  an  infer- 
ence that  he  was  keeping  it  in  the  statutory  sense.^^  It  has  been  said 
that  proof  of  a  single  act  of  possession  or  supervision  may  not  be 
enough  to  sustain  a  conviction  of  keeping,  for  the  offense  is  continu- 
ous.®^ But  under  many  of  the  statutes  no  particular  time  is  required, 
and  so  keeping  it  for  a  single  day  or  part  of  a  day  may  be  sufficient.®^ 

'« Howard   v.    State,    64    Ind.    516;  ^  Lettz  v.   State,    (Tex.  Cr.  App.) 

De  Haven  v.  State,  2  Ind.  App.  376,  21  S.  W.  371;  Harman  v.  State,  (Tex. 

28  N.  E.  562.  Cr.  App.)    22   S.  W.   1038;    Wren  v. 

"Howard  v.  State,  64  Ind.  516.  State,  70  Ala.  1;  Robbins  v.  People, 

^°  Green  v.  State,  109  Ind.  175,  9  N.  95  111.  175;  Commonwealth  v.  Clan- 

E.    781;    Howard    v.    State,    64    Ind.  cy,   154   Mass.   128,    27   N.   E.   1001; 

516.  Douglass  v.  State,  18  Ind.  App.  289, 

«i  Howard  v.  State,  64  Ind.  516.  48  N.  E.  9. 

«2  Courtney   v.   State,   5   Ind.   App.  ^'^  Underbill  Cr.  Bv.,  §  475;  United 

356,  32  N.  E.  335.  States  v.    Smith,   4  Craneh    (U.   S.) 

«'De  Haven  v.  State,  2  Ind.  App.  659;    Jessup  v.   State,   14   Ind.  App. 

376,  28  N.  E.  562.  230,  42  N.  E.  948;    contra.  State  v. 

**  Commonwealth    v.     Hopkins,     2  Crogan,  8  Iowa  523,  524. 

Dana  (Ky.)  418.  «' State  v.  Cooster,   10   Iowa  453; 


287  KEEPING  GAMBLING  HOUSE.  [§    3009. 

It  has  been  held  that  the  particular  game  which  was  played  need  not  be 
alleged^^  or  proved/"  It  has  also  been  said  that  the  reputation  of  the 
house  as  a  gambling  or  disorderly  house  is  incompetent.®"  But  it  may 
be  admissible  in  some  cases  to  show  knowledge  or  the  like,®^  and  the 
reputation  of  those  who  frequent  the  house  as  being  gamblers  may  be 
shown/-'^  and  so,  in  some  cases,  may  their  conduct  and  declarations.®^ 
Specific  acts  of  gambling  have  been  held  admissible  in  evidence  to 
prove  the  keeping  of  a  gambling  house,®*  and  evidence  denying  that 
such  acts  were  committed  is  also  competent.®'^  It  is  not  necessary  to 
directly  prove  a  winning  or  losing  from  actual  observation,  but  gaming 
and  the  keeping  of  the  place  for  that  purpose  may  be  inferred  from 
circumstances.®®  Some  evidence  that  the  defendant  knew  that  gam- 
bling was  carried  on  in  his  house  or  room  is  generally  necessary  to 
sustain  a  conviction,"  but  it  has  been  held  that  his  knowledge  that  it 
was  used  for  gaming  may  be  inferred  from  proof  that  it  was  generally 
reputed  to  be  used  as  a  gambling  room,  that  the  tenant  had  pleaded 
guilty  to  a  charge  of  keeping  a  gaming  establishment  in  such  room, 
and  that  the  defendant  collected  his  own  rent  from  other  tenants  in 
the  same  building  and  neighborhood,  and  mingled  with  the  citizens  of 
the  community.®*  Evidence  that  gaming  was  regularly  permitted  upon 
tables  in  defendant's  saloon,  which  belonged  to  him,  of  which  his  bar- 
State  v.  Markham,  15  La.  Ann.  498;  307,  37  Atl.  619;  see  also,  Lowe  v. 
McAlpin  V.  State,  3  Ind.  567;  Arm-  State,  86  Ala.  47,  5  So.  435. 
strong  V.  State,  4  Blackf.  (Ind.)  "Armstrong  v.  State,  4  Blackf. 
247.  (Ind.)   247;   Gaylor  v.  McHenry,  15 

*» State  V.  Dole,  3   Blackf.    (Ind.)      Ind.  383;   Stefani  v.  State,  124  Ind. 
294.  3,  24  N.  E.  254. 

«» Commonwealth    v.    Lampton,    4         '=*  Stefani   v.    State,   124   Ind.   3,   6, 
Bibb.    (Ky.)    261;    State   v.   Dole,   3     24  N.  E.  254. 

Blackf.  (Ind.)  294.  But  it  has  been  =*  Simms  v.  State,  60  Ga.  145;  Cox 
held  that  when  alleged  it  must  be  v.  State,  95  Ga.  502,  20  S.  E.  269; 
strictly  proved.  Dudney  v.  State,  32  State  v.  Boyer,  79  Iowa  330,  44  N.  W. 
Ark.  251,  252.  558;   Commonwealth  v.  Adams,   160 

""Wharton  Cr.  Ev.,  §  260.  Mass.  310,  35  N.  E.  851;  Robbins  v. 

"1  Voght  v.  State,  124  Ind.  358,  24     People,  95  111.  175;  McAlpin  v.  State, 
N.  E.  680.  3    Ind.   567;    Hamilton   v.   State,    75 

"=  State  v.  Mosby,  53  Mo.  App.  571;      Ind.   586;    Voght  v.   State,   124    Ind. 
Anderson  v.   State,    (Tex.  App.)    12     358,  24  N.  E.  680;  Neeld  v.  State,  25 
S.    W.    868.     But   the    contrary   has     Ind.  App.  603,  58  N.  E.  734. 
been  held  as  to  reputation  of  the  de-         »^  Padgett    v.    State,    68    Ind.    46; 
fendant.    Lettz  v.   State,    (Tex.   Cr.     Harris  v.  State,  5  Tex.  11. 
App.)  21  S.  W.  371.  »« Voght  v.  State,  124  Ind.  358,  24 

»^  Bindernagle  v.  State,  60  N.  J.  L.     N.  E.  680;   see  also,  State  v.  Hand, 

7  Iowa  411. 


§    3010.]  GAMBLING. 


288 


keeper  had  charge,  and  that  defendant  was  frequently  present  in  the 
saloon  during  a  period  of  two  years,  although  inattentive,  but  able  to 
see  what  was  going  on  if  he  chose,  is  sufficient  to  justify  his  conviction 
for  permitting  his  house  to  be  used  for  gambling.^^  His  presence  in 
the  room  at  any  time  is  not  an  essential  element  in  the  offense  of  keep- 
ing a  gaming  house,^*^"  but  evidence  that  a  gambling  room  in  charge 
of  another  person  was  situated  over  defendant's  saloon,  in  a  rented 
building,  from  which  it  could  be  reached  by  a  stairway,  and  that  per- 
sons reached  it  by  passing  through  his  saloon,  has  been  held  insufficient 
of  itself  to  prove  that  defendant  kept  the  gambling  room.^"^  It  is  gen- 
erally for  the  jury  to  determine  what  inference  shall  be  drawn  from 
the  facts  proved,"^  and  whether  or  not  the  keeping  of  a  gambling 
house  by  the  defendant  is  proved  beyond  a  reasonable  doubt  or  should 
be  inferred  from  the  evidence.  ^**^ 

§  3010.  Minors  playing. — In  some  of  the  states  there  are  specific 
statutes  directed  against  gambling,  and  even  the  mere  playing  or  per- 
mitting the  playing  of  certain  forbidden  games,  in  certain  places  by 
minors.  Proof  of  a  wager  by  the  minor  upon  the  result  of  such  a  game 
has  been  held  unnecessary  under  statutes  of  the  latter  class.^"*  But 
some  of  the  courts  have  been  strict  in  requiring  the  proof  to  correspond 
with  the  charge  in  regard  to  the  parties  playing,^"^  the  kind  of  game,"« 
and  even  the  kind  of  table  used.^**'^  Evidence  that  the  defendant  had 
the  general  management  and  control  of  the  room  and  of  the  table  on 
which  the  game  was  played,  and  that  he  was  present  and  saw  the  minor 
play,  has  been  held  sufficient  to  sustain  a  charge  against  him  for  per- 
mitting a  minor  to  play  thereon,  although  he  is  not  shown  to  have 
controlled  and  managed  the  table  in  person.^^^  The  minority  of  the 
prosecuting  witness  being  established,  together  with  other  facts  making 

<«  Crawford  v.  State,  33  Ind.  304;  N.  J.  L.  61,  7  Atl.  340;   Campbell  v. 

Hamilton  v.  State,  75  Ind.  586;   see  State,    55    Ala.    89;    Winemiller    v. 

also,    Stoltz    V.    People,    5    111.    168;  State,    11    Ind.    516;     Hamilton    v. 

Robinson  v.  State,  24  Tex.  152.  State,  75  Ind.  586. 

!«>  Hazen  v.  State,  58  Ind.  197.  "^  Ready  v.  State,  62  Ind.  1 ;  Bond 

'»>  Barnaby  v.  State,  106  Ind.  539,  v.  State,  52  Ind.  457. 

7  N.  E.  231 ;  see  also,  Commonwealth  ''^  Moore  v.  State,  65  Ind.  214. 

V.  Dean,  1  Pick.   (Mass.)   387;  Scott  ""Squire    v.    State,    66    Ind.    317; 

Y.  State,'  29  Ga.  263.  Sumner  v.  State.  74  Ind.  52. 

""Voght    V.    State,    124    Ind.    358,  "'Bartender  v.   State,  51  Ind.  73, 

24  N.  E.  680.  76. 

"^  Bindernagle  v.  State,  60  N.  J.  L.  '°'  Hipes  v.  State,  73  Ind.  39. 
307,  37  Atl.  619;  Brown  v.  State,  49 


289 


LOTTERIES. 


[§  3011. 


out  a  prima  facie  case,  it  has  been  held  that  the  defendant  has  the  bur- 
den of  proof  to  show  that  he  acted  in  good  faith  under  an  honest  be- 
lief, which  was  justified  by  the  appearance  of  the  minor  and  other 
facts  within  defendant's  knowledge  that  the  minor  was  of  full  age.^°^ 
But  it  has  been  held  that  the  state  must  show  the  guardian's  want  of 
consent  where  that  is  an  essential  element  of  tlie  offense.^^" 

§  3011.  Lotteries. — Lotteries  constitute  a  species  or  kind  of  gam- 
ing.^^^  Laws  against  lotteries  and  providing,  under  certain  circum- 
stances and  proceedings,  for  the  seizure  of  lottery  tickets  and  the  like 
have  very  generally  been  upheld  as  constitutional."-  It  has  also  been 
held  that  the  court  will  take  judicial  notice  of  the  meaning  of  the 
term  "gift  enterprise"  as  a  scheme  for  the  division  or  distribution  of 
articles,  to  be  determined  by  chance,  among  those  who  have  taken 
shares  in  the  scheme."^  On  the  trial  of  an  indictment  for  selling  lot- 


""  Taylor  v.  State,  107  Ind.  483, 
8  N.  E.  450;  Swigart  v.  State,  99 
Ind.  111. 

'i°Conyers  v.  State,  50  Ga.  103, 
106,  107.  It  has  been  held  that  the 
accused  may  show  in  such  case  that 
he  used  care  to  ascertain  the  age 
of  the  player,  and  for  this  purpose 
may  prove  facts  descriptive  of  his 
personal  appearance  and  his  replies 
to  questions  put  to  him.  Stern  v. 
State,  53  Ga.  229;  Goetz  v.  State,  41 
Ind.  162;  see  also.  Commonwealth 
v.  Emmons,  98  Mass.  6. 

"1  Bishop  Stat.  Cr.,  §  951;  Thomas 
v.  People,  59  111.  160;  Bell  v.  State, 
5  Sneed  (Tenn.)  507;  for  defini- 
tion of  the  term  see.  Bishop  Stat. 
Cr.,  §  951,  and  the  opinion  in, 
United  States  v.  Olney,  1  Abb.  (U. 
S.)  275,  where  several  definitions 
are  quoted  and  commented  on.  See 
also.  State  v.  Kansas  &c.  Co.,  45 
Kans.  351,  23  Am.  St.  727;  Yellow- 
stone Kit  v.  State,  88  Ala.  196,  16 
Am.  St.  38;  State  v,  Boneil,  42  La. 
Ann.  1110,  8  So.  298,  21  Am.  St.  413; 
People  V.  Elliott,  74  Mich.  264,  41  N. 
W.  916,  3  L.  R.  A.  403,  and  note; 
also  notes  in,  7  L.  R.  A.  799;  8  L.  R. 
Vol.  4  Elliott  Ev. — 19 


A.  671,  and  10  L.  R.  A.  60;  Lynch  v. 
Rosenthal,  144  Ind.  86,  90.  42  N.  E. 
1103,  55  Am.  St.  171.  The  authori- 
ties and  notes  treat  very  fully  the 
question  as  to  what  are  or  are  not 
lotteries,  and  furnish  many  exam- 
ples and  illustrations. 

"-  See,  Stone  v.  Mississippi,  101 
U.  S.  814;  Boyd  v.  Alabama,  94  U.  S. 
645;  Commonwealth  v.  Dana,  2  Mete. 
(Mass.)  329;  Salomon  v.  State,  27 
Ala.  26;  People  v.  Noelke,  94  N.  Y. 
137,  46  Am.  R.  128  (forbidding  sale 
of  tickets,  although  the  lottery  is  in 
another  state  in  which  it  is  lawful) ; 
Wong  Hane,  In  re,  108  Cal.  680,  41 
Pac.  693,  49  Am.  St.  138;  Common- 
wealth V.  Gorman,  164  Mass.  549,  42 
N.  E.  94;  Ford  v.  State,  85  Md.  465, 
60  Am.  St.  337.  In  several  of  these 
cases  statutes  making  it  unlawful  or 
at  least  prima  facie  evidence  of  guilt 
to  have  lottery  tickets  in  possession 
were  upheld. 

"'  Lohman  v.  State,  81  Ind.  15;  see 
also  as  to  the  meaning  of  this  term, 
Winston  v.  Beeson,  135  N.  Car.  271, 
47  S.  E.  457,  65  L.  R.  A.  167,  and 
authorities  cited. 


§    3011.]  GAMBLING.  290 

tery  tickets,  it  has  been  held  that  they  should  be  produced  unless  good 
cause  is  shown  for  not  producing  them.^^*  Printed  envelopes  for  such 
tickets  and  handbills  advertising  them,  found  on  the  defendant's  desk 
or  counter  and  bearing  his  name,  are  competent  evidence  against 
him.^^^  Evidence  of  the  sale  of  "policies"  has  also  been  held  admissible 
under  an  indictment  for  selling  lottery  tickets,^^®  and  it  has  been  held 
that  although  the  alleged  lottery  ticket  set  out  in  the  indictment  is 
not  clearly  such  a  ticket  upon  its  face,  it  may  be  averred  and  proved 
to  be  such."'^  And  evidence  that  tlie  defendant  sold  a  ticket  or  paper 
bearing  certain  numbers  representing  the  purchaser's  title  to  a  prize 
to  be  drawn  by  such  numbers  in  a  lottery,  or  game  of  chance  in  the 
nature  of  a  lottery,  has  been  held  sufficient  to  support  a  conviction."^ 

"*  Whitney  v.  State,  10  Ind.  404.  "■  State  v.  Willis,  78  Me.  70,  2  Atl. 

^■'Dunn  v.  People,  40  111.  465;  see  848. 

also,   Collins  v.   Lean,    68   Cal.    284,  "•*  State  v.  Rothschild,  19  Mo.  App. 

9  Pac.  173.  137. 

"''Smith  v.   State,  68  Md.  168,  11 
Atl.  758. 


CHAPTER  CXLV. 


HOMICIDE. 


Sec. 

3012. 

3013. 

3014. 

3015. 

3016. 


3017. 
3018. 

3019. 

3020. 
3021. 

3022. 

3023. 

3024. 
3025. 

3026. 
3027. 

3028. 
3029. 

3030. 


Sec. 

Definition  and  classification.        3031. 

Presumption  of  innocence.  3032. 

Presumptions — As  to  intent. 

Presumptions — Not  conclusive.     3033. 

Presumption  of  malice — From 

deliberation  or  want  of  prov-     3034. 
ocation.  3035. 

Presumptions  as  to  malice. 

Presumptions — When  not  pre- 
sumed— Conflicting  views.         3036. 

Presumptions  as  to  degree  of 

offense.  3037. 

Other  presumptions.  3038. 

Burden  of  proof — As  to  mal- 
ice. 3039. 

Burden   of   proof — As  to   self- 
defense  and  insanity.  3040. 

Burden  of  proof — In  general. 

Questions  of  law  or  fact.  3041. 

Evidence  as  to  physical  condi-     3041a 
tion  and  the  body. 

Evidence  as  to  motive.  3042. 

Means     used     and     cause     of     3043. 
death.  3044. 

Articles  in  evidence. 

Attendant  circumstances — Res     3045. 
gestae. 

Attendant  circumstances — Dec-     3046. 
larations. 


Dying  declarations. 

Dying  declarations — When  ad- 
missible. 

Dying  declarations — When  not 
admissible. 

Confessions. 

Previous  circumstances — 
Threats,  preparation  and 
previous  attempts. 

Previous  circumstances — Some 
others. 

Proceedings  at  inquest. 

Evidence  as  to  character — Of 
deceased. 

Evidence  as  to  character — Of 
accused. 

Evidence  of  habits  and  dispo- 
sition. 

Evidence  as  to  self-defense. 

,  Evidence  as  to  self-defense — 
Justification  or  excuse. 

Evidence  as  to  other  defenses. 

Evidence  in  general. 

Evidence  in  general — Admissi- 
ble. 

Evidence  in  general — Not  ad- 
missible. 

Weight  and  sufficiency — Vari- 
ance. 


§  3012.  Definition  and  classification. — Homicide  in  the  most  com- 
prehensive meaning  of  the  term  is  the  killing  of  any  human  being.^ 
It  is  the  killing  of  one  human  being  by  another  human  being.  "The 
term,  in  its  largest  sense/'  says  Chief  Justice  Shaw,  "is  generic,  em- 
bracing every  mode  by  which  the  life  of  one  man  is  taken  by  the  act 


*  Standard    Diet. ;     1    Bouvier 


L.  Diet. 
291 


(Rawle's  ed.)  958. 


§  3013.]  HOMICIDE.  293 

of  another.  Homicide  may  be  lawful  or  unlawful ;  it  is  lawful  when 
done  in  lawful  war  upon  an  enemy  in  battle;  it  is  lawful  when  done 
by  an  officer  in  the  execution  of  justice  upon  a  criminal,  pursuant 
to  a  proper  warrant.  It  may  also  be  justifiable,  and  of  course  law- 
ful, in  necessary  self-defense.  By  the  existing  law,  as  adopted  and 
practiced  on,  unlawful  homicide  is  distinguished  into  murder  and 
manslaughter.  Murder,  in  the  sense  in  which  it  is  now  understood, 
is  the  killing  of  any  person  in  the  peace  of  the  commonwealth,  with 
malice  aforethought,  either  express,  or  implied  by  law.  Malice,  in 
this  definition,  is  used  in  a  technical  sense,  including  not  only  anger, 
hatred  and  revenge,  but  every  other  unlawful  and  unjustifiable  mo- 
tive. It  is  not  confined  to  ill-will  toward  one  or  more  individual 
persons,  but  it  is  intended  to  denote  an  action  flowing  from  any 
wicked  and  corrupt  motive,  a  thing  done  with  malo  animo,  where  the 
fact  has  been  attended  with  such  circumstances  as  carry  in  them  the 
plain  indications  of  a  heart  regardless  of  social  duty,  and  fatally  bent 
on  mischief.  And  therefore  malice  is  implied  from  any  deliberate 
or  cruel  act  against  another,  however  sudden.  Manslaughter  is  the 
unlawful  killing  of  another  without  malice;  and  may  be  either  vol- 
untary, as  when  the  act  is  committed  with  a  real  design  and  purpose 
to  kill,  but  through  the  violence  of  sudden  passion,  occasioned  by 
some  great  provocation,  which  in  tenderness  for  the  frailty  of  human 
nature  the  law  considers  sufficient  to  palliate  the  criminality  of  the 
offense;  or  involuntary,  as  when  the  death  of  another  is  caused  by 
some  unlawful  act  not  accompanied  by  any  intention  to  take  life."^ 
Murder  is  also  divided  by  statute  in  many  jurisdictions  into  murder 
in  the  first  degree  and  murder  in  the  second  degree.  Unlawful  or 
criminal  homicide,  such  as  we  have  to  do  with  in  this  chapter,  may, 
therefore,  bo  murder  in  the  first  degree,  murder  in  the  second  degree, 
or  manslaughter.^ 

§  3013.  Presumption  of  innocence. — The  presumption  of  inno- 
cence is  one  of  the  most  important  of  all  presumptions.  It  has  its 
place  in  civil  actions,  but  it  is  particularly  applicable  in  prosecutions 
for  crime ;  and  in  no  class  of  cases,  perhaps,  is  it  more  important  than 
in  prosecutions  for  murder  or  manslaughter.     The  accused  starts  out 

=  Commonwealth     v.     Webster,     5         'See,    18    Am.    Dec.    774,    note;    2 
Cush.  (Mass.)  295,  52  Am.  Dec.  711,     Bouvier  L.  Diet.   (Rawle's  ed.)   459, 
716,  717,  and  note;  see  also,  1  Rus-     460;  1  McClain  Cr.  Law,  §  335. 
sell  Crimes  421;    1  Hale  P.  C.  466; 
1  East  P.  C.  218. 


393  PRESUMrxiONS — intent.  [§  3014. 

-with  this  presumption  in  his  favor,  and  the  burden  remains  upon  the 
prosecution,  according  to  the  better  view,  to  ultimately  establish  his 
guilt  beyond  a  reasonable  doubt."  It  is  also  said,  in  some  cases  and 
by  some  writers,  that  this  presumption  operates  and  is  to  be  weighed 
as  evidence  in  his  favor  throughout  the  trial,  but,  as  elsewhere 
shown,  this  doctrine  seems  questionable.^  It  has  been  held  that  the 
presumption  of  innocence  is  no  stronger  where  the  relation  between 
the  accused  and  the  deceased  was  that  of  parent  and  child,  husband 
and  wife,  or  the  like,«  and,  in  a  strict  sense,  this  would  seem  to  be 
correct,  but  the  opposite  view  seems  to  have  been  taken  in  some 
cases.'^ 

§  3014.  Presumptions— As  to  intent. — An  intent  to  kill  may,  of 
course,  be  inferred  from  circumstantial  evidence,  and  it  is  some- 
times said  that  such  an  intent  is  presumed  from  the  act  of  killing 
by  using  a  deadly  weapon  or  the  like  because  one  is  presumed 
to  intend  the  actual  consequences  of  his  act.^  Thus  it  has  been  held 
that  an  intent  to  kill  by  striking  a  mortal  blow  may  be  presumed 
from  the  circumstances  of  the  killing.^  But  a  presumption  of  in- 
tention cannot  arise  from  the  previous  character  of  the  prisoner,  for 
his  intentions  can  only  be  determined  by  his  acts.^''  A  presumption 
of  intent  to  commit  murder  has  been  held  to  arise  from  the  defend- 
ant's act  of  shooting  into  a  crowd,  because  every  man  is  supposed  to 

^Ogletree  v.   State,    28   Ala.    693;  « Hawes  v.  State,  88  Ala.  37,  7  So. 

Bird  V.   State,   43   Pla.   541,   30   So.  302;  State  v.  Soper,  148  Mo.  217,  49 

655;  State  v.  Young,  99  Mo.  666,  12  S.  W.  1007. 

S.  W.  879;  Jones  v.  State,  13  Tex.  ''State  v.  Green,  35  Conn.  203;  see 
App.  1;  Vol.  I,  §  95;  see  also.  State  also,  People  v.  Greenfield,  23  Hun 
V.  Earnest,  56  Kans.  31,  42  Pac.  359;  (N.  Y.)  454;  State  v.  Hossack,  116 
Peyton  v.  'state,  54  Neb.  188.  74  N.  Iowa  194,  89  N.  W.  1077. 
W.  597;  Gravely  v.  State,  38  Neb.  « State  v.  Smith,  12  Rich.  L.  (S. 
871,  57  N.  W.  751;  Ford  v.  State,  73  Car.)  430;  Harrison  v.  Common- 
Miss.  734,  19  So.  665,  35  L.  R.  A.  117;  wealth,  79  Va.  374;  State  v.  Shep- 
State  v.  Hudspeth,  159  Mo.  178,  60  pard,  49  W.  Va.  582,  39  S.  E.  676; 
S.  W.  136;  Jones  v.  State,  51  Ohio  see  also.  Weaver  v.  People,  132  111. 
St.  331,  38  N.  E.  79;  Wilkerson  v.  536,  24  N.  E.  571;  State  v.  Grant,  144 
Commonwealth,  25  Ky.  L.  R.  780,  76  Mo.  56,  45  S.  W.  1102;  State  v. 
S.  W.  359.  Doyle,   107   Mo.    36,    17    S.   W.    751; 

^'See,  Vol.  I,  §§  92,  93,  95;  State  v.  Chalk  v.  State,  35  Tex.  Cr.  App.  116, 

Linhoff,  121  Iowa  632,  97  N.  W.  77;  32  S.  W.  534. 

People  v.  Moran,  144  Cal.  48,  77  Pac.  ^  State  v.  Walker,  37  La.  Ann.  560. 

777.  "  People  v.  Milgate,  5  Cal.  127. 


§  3014.]  HOMICIDE.  294 

intend  the  necessary  consequences  of  his  own  acts.**  So  it  has  been 
held  that  where  one  purposely  fired  into  a  crowd  without  intending 
to  kill  any  particular  person,  but  did  kill  one,  the  law  presumes  the 
killing  intentional.^^  And  it  has  even  been  held  that  a  presumption 
arises  that  a  killing  was  intentional  where  the  mere  act  of  killing 
is  proved,  since  every  homicide  is  presumed  unlawful."  That  is,  one 
is  presumed  to  intend  to  do  that  which  in  fact  he  actually  does  do.^* 
It  has  also  been  held  that  a  presumption  of  intent  to  kill  may  arise 
where  the  evidence  shows  that,  had  death  ensued  from  the  assault, 
the  crime  would  have  been  murder.^^  A  presumption  does  not  arise 
that  a  certain  assault  was  without  intent  to  take  life  from  the  fact 
that  the  defendant  had  his  assailant  in  his  power,  and  could  have 
killed  him  but  did  not.*®  So  a  presumption  of  intent  to  kill  may 
arise  from  the  means  or  weapon  used  and  the  manner  of  its  use. 
Thus,  a  presumption  of  intent  to  kill  arises  where  a  party  does  an  act 
with  a  dangerous  or  deadly  weapon,  which,  from  its  nature  and  the 
way  it  is  done,  would  naturally,  probably,  or  reasonably  produce 
death."  It  has  also  been  said  that  the  law  infers  from  the  use  of  a 
deadly  weapon  an  intent  to  kill  or  to  do  grievous  bodily  harm,  and 
the  presumption  of  malice  is  conclusive,  unless  excuse,  justification, 
or  immediate  provocation  are  shown  ;*«  and  that  killing  with  a  deadly 
weapon  is  prima  facie  evidence  that  the  design  to  kill  was  formed  in 

"Walker    v.    State,    8    Ind.    290;  and  need  not  be  alleged,  or,  if  al- 

Brown  v.  Commonwealth,  13  Ky.  L.  leged  in  the  indictment,  is  a  formal 

R.  372,  17  S.  W.  220;  Bailey  v.  State,  averment,  which  need  not  be  proved. 

133  Ala.  155,  32  So.  57;   Austin  v.  Chelsey  v.  State,  121  Ga.  340,  49  S. 

State,  110  Ga.  748,  36  S.  E.  52,  78  E.  258. 

Am.  St.  134;  State  v.  Young,  50  W.  »  Parrish  v.  State,  14  Neb.  60,  15 

Va.  96,  40  S.  E.  334,  88  Am.  St.  846.  N.  W.  357. 

^  State  V.   Edwards,  71   Mo.   312;  i=  Cole  v.  State,  10  Ark.  318. 

see  also,  notes  in  63  L.  R.  A.  353,  ^"Jackson  v.  State,  94  Ala.  85,  10 

660,  902.  So.  509. 

"State  V.  Brown,  12  Minn.  538;  "Hill  v.  People,  1  Colo.  436;  Moon 
State  V.  Smith,  12  Rich.  L.  (S.  Car.)  v.  State,  68  Ga.  687;  Voght  v.  State, 
430;  Wilson  v.  State,  69  Ga.  224;  but  145  Ind.  12,  43  N.  E.  1049;  State  v. 
see.  People  v.  Downs,  56  Hun  (N.  Gassert,  4  Mo.  App.  44;  State  v.  Mu- 
Y.)  5,  8  N.  Y.  S.  521;  Connell  v.  sick,  101  Mo.  260,  14  S.  W.  212;  Hen- 
State,  (Tex.  Cr.  App.)  81  S.  W.  746.  son  v.  State,  112  Ala.  41,  21  So.  79; 
Where  there  has  been  a  completed  People  v.  Wolf,  95  Mich.  625,  55  N. 
murder,  the  law  supposes  that  the  W.  357;  Bishop  v.  State,  62  Miss. 
person  intends  the  natural  conse-  289;  Kilpatrick  v.  Commonwealth,, 
quences  of  his  act,  and  in  such  cases  31  Pa.  St.  198. 
the  evil  intention  will  be  presumed,  '"  Sylvester  v.  State,  72  Ala.  201. 


295  PRESUMPTIONS — NOT    CONCLUSIVE.  [§    3015. 

the  mind  of  the  party  committing  the  act,  and  that  the  killing  was  the 
consequence  of  such  design.^''  And  where  the  accused  fired  a  loaded 
pistol  at  one  and  killed  him  it  was  said  that  the  law  presumed  that 
he  intended  so  to  do.'**  So,  a  shotgun  fired  within  killing  distance, 
and  aimed  at  a  vital  part,  there  being  no  proof  to  the  contrary,  shows 
intent  to  kill.^^  And  a  presumption  of  an  intent  to  kill  has  been  held 
to  arise  where  there  was  an  assault  with  a  gun.--  So  intent  may  be 
inferred  from  the  deliberate  use  of  any  deadly  weapon."  A  pre- 
sumption arises  in  the  absence  of  other  proof  that  an  act  was  volun- 
tarily done  where  a  party  without  necessity  kills  another  with  a 
deadly  weapon.-*  And  it  has  been  said  that  nothing  affords  more  con- 
clusive evidence  of  the  intent  to  take  life  than  the  weapon  used.^^ 

§  3015.     Presumptions — Not  conclusive. — Some  of  the  authorities 

cited  in  the  last  preceding  section  seem  to  us  to  go  to  the  extreme,  if 
not  beyond.  On  the  other  hand,  some  courts  hold  that  there  is  no 
necessary  legal  presumption  of  intent  to  kill  even  from  the  use  of  a 
deadly  weapon,  although  it  may  justify  an  inference  of  such  intent.-*' 
And  the  presumption  of  intent  to  kill,  from  the  use  of  a  deadly 
weapon  or  the  like,  is  not  conclusive,  but  may  be  rebutted.-^  It  has 
also  been  held  that  the  intent  to  kill  may  be  presumed  from  the  use 
of  a  deadly  weapon  only  where  it  was  deliberately  used  in  a  deadly 
manner.-^     So,  it  has  been  held  that  in  the  absence  of  other  facts, 

"  Bivens  v.  State,  11  Ark.  455.  forth  v.  State,  44  Tex.  Cr.  App.  105, 

-"People  V.  Langton,  67  Cal.  427,  7  69  S.  W.  159;  People  v.  Batting,  49 

Pac.  843.  How.    Pr.    (N.    Y.)    392;    People    v. 

=^  State   V.    Dill,    9    Houst.    (Del.)  Downs,  56  Hun  (N.  Y.)  5,  8  N.  Y.  S. 

495,  18  Atl.  763.  521. 

"  State  V.  Musick,  101  Mo.  260,  14        "Clem    v.     State,    31    Ind.    480; 

S.  W.  212.  Thomas    v.    People,    67    N.    Y.    218; 

=^  Walker  v.  State,  136  Ind.  663,  36  State  v.   Brooks,  1  Ohio  Dec.    (Re- 

N.  E.  356;  Coolman  v.  State,  (Ind.)  print)  407,  9  Wkly.  L.  J.  109;  in  the 

72  N.  E.  568.  first  case  above  cited  the  statement 

=*  Oliver  v.  State,  17  Ala.  587.  in  1  Greenleaf  Ev.,  §  18,  that  the  pre- 

-^  Commonwealth  v.  Green,  1  Ash.  sumption  is  conclusive  is  said  to  be 

(Pa.)  289.  a  "great  inaccuracy,"  and  is  severely 

-^See,  Fitch  v.  State,  37  Tex.  Cr.  criticised. 
App.  500,  36  S.  W.  584;  Cross  v.  ^-^  State  v.  Walker,  1  Ohio  Dec.  (Re- 
State,  55  Wis.  261,  12  N.  W.  425;  print)  353,  8  Wkly.  L.  J.  145;  Simp- 
State  V.  McKinzie,  102  Mo.  620,  15  son  v.  State,  56  Ark.  8,  19  S.  W.  99; 
S.  W.  149;  State  v.  Tabor.  95  Mo.  Cross  v.  State,  55  Wis.  261,  12  N  W. 
585,  8  S.  W.  744;  see  also,  Simpson  425. 
V.  State,  56  Ark.  8,  19  S.  W.  99;  Dan- 


§  2016.] 


HOMICIDE. 


IdQ 


the  intent  to  kill  cannot,  as  a  matter  of  law,  be  presumed  from  a  kill- 
ing with  a  stick  four  feet  long  and  two  inches  in  diameter.^^  It  has 
likewise  been  held  that  an  intent  to  kill  cannot  be  presumed  from 
the  mere  fact  that  a  pistol  was  discharged  with  criminal  negligence.^" 
So,  it  is  generally  held  that  where  a  specific  intent  is  essential,  as  in 
prosecutions  for  assault  with  intent  to  murder,  or  the  like,  wdiere 
death  does  not  result,  it  is  not  presumed  by  the  law  from  the  mere 
use  of  a  dangerous  weapon  or  the  like.^^ 

§  3016.  Presumption  of  malice — From  deliberation  or  want  of 
provocation. — There  is  some  conflict  among  the  authorities  upon  the 
subject  of  the  presumption  of  malice.  It  may  undoubtedly  be  in- 
ferred, in  a  proper  case,  from  the  circumstances  of  an  unlawful  kill- 
ing, and  it  is  often  said  that  in  the  absence  of  anything  to  the  con- 
trary the  law  presumes  malice  from  such  a  killing,^^  at  least  where  a 
deadly  weapon"^  is  deliberately  used.^"*  Thus,  it  is  said,  that  malice 
being  a  necessary  ingredient  of  the  crime  of  murder,  the  law  infers 
it  wherever  the  killing  is  deliberate  and  premeditated.^^     And  it  is 


^  Fitch  V.  State,  37  Tex.  Cr.  App. 
500,  36  S.  W.  584. 

=="  Bryant  v.  State,  5  Wyo.  376,  40 
Pac.  518;  see  also,  Johnson  v.  State, 
66  Ohio  St.  59,  63  N.  E.  607,  90  Am. 
St.  564,  and  note;  but  see,  63  L.  R. 
A.  660,  note;  Bailey  v.  State,  133 
Ala.  155,  32  So.  57;  Brown  v.  Com- 
monwealth, 13  Ky.  L.  R.  372,  17  S. 
W.  220. 

^-^  Morgan  v.  State,  33  Ala.  413; 
Lane  v.  State,  85  Ala.  11,  4  So.  730; 
Simpson  v.  State,  56  Ark.  8,  19  S.  W. 
99;  Chrisman  v.  State,  54  Ark.  283, 
15  S.  W.  889,  26  Am.  St.  44;  Crosby 
V.  People,  137  111.  325,  27  N.  E.  49; 
State  V.  Taylor,  70  Vt.  1,  39  Atl.  447, 
42  L.  R.  A.  673;  State  v.  Dolan,  17 
Wash.  499,  50  Pac.  472;  see  also. 
People  V.  Mize,  80  Cal.  41,  22  Pac. 
80;  Gallery  v.  State,  92  Ga.  463,  17 
S.  E.  863;  but  compare.  People  v. 
Odell,  1  Dak.  197,  46  N.  W.  601; 
State  V.  Musick,  101  Mo.  260,  14  S. 
W.  212. 

^=  State   V.  Brown,  12   Minn.   538; 


Green  v.  State,  28  Miss.  687;  Davis 
V.  State,  51  Neb.  301,  70  N.  W.  984; 
State  V.  Knight,  43  Me.  11;  Brown 
V.  State,  62  N.  J.  L.  666,  42  Atl.  811; 
State  V.  Lambert,  93  N.  Car.  618; 
Lewis  V.  State,  90  Ga.  95,  15  S.  E. 
697;  Boyd  v.  State,  28  Tex.  App.  137, 
12  S.  W.  737. 

'^  Commonwealth  v.  Webster,  5 
Cush.  (Mass.)  295,  52  Am.  Dec.  711; 
State  V.  Hockett,  70  Iowa  442,  30  N. 
W.  742,  4  L.  R.  A.  298;  Hadley  v. 
State,  55  Ala.  31;  Harkness  v.  State, 
129  Ala.  71,  30  So.  73;  State  v.  Da- 
vis, 9  Houst.  (Del.)  407,  33  Atl.  55; 
Jackson  v.  State,  53  Ga.  195;  Hanye 
v.  State,  99  Ga.  212,  25  S.  E.  307. 

^*See,  State  v.  Curtis,  70  Mo.  594; 
State  V.  Evans,  124  Mo.  397,  28  S. 
W.  8;  McDermott  v.  State,  89  Ind. 
187;  Friederich  v.  People,  147  111. 
oiO,  35  N.  E.  472;  Murphy  v.  State, 
31  Ind.  511;  Holland  v.  State,  12 
Fla.   117. 

^=  Dejarnette  v.  Commonwealth,  75 
Va.  867. 


297  PRESUMPTIONS — MALICE.  [§    3017. 

likewise  said  that  malice  is  implied  by  law  from  any  deliberate  aod 
cruel  act  committed  by  one  person  against  another.^*'  That  is,  malice 
is  presumed  in  all  cases  of  deliberate  homicide  not  done  in  the  heat 
of  passion.^^  And  a  presumption  of  malice  arises  upon  proof  that  a 
killing  was  wilful,  premeditated  and  deliberate.^®  So  where  no  ex- 
press malice  is  shown,  yet,  if  the  killing  was  done  under  circumstances 
of  cruelty  and  malignity,  it  is  said  that  the  law  presumes  malice.^^ 
Again,  it  is  said  that  malice  is  presumed  from  a  deliberate  injury  to 
another,  or  from  tlie  use  of  a  deadly  weapon,  resulting  in  another's 
death.**'  And  where  there  is  a  lack  of  provocation  malice  may  be  pre- 
sumed. Thus  where  two  persons  are  fighting,  and  a  third,  uncon- 
nected with  either,  without  any  apparent  provocation,  stabs  one  of 
the  parties,  it  is  held  that  the  law  will  imply  malice."  And  malice 
is  ordinarily  inferred  from  a  premeditated  killing  without  sufficient 
provocation  or  excuse.*^  Thus  a  presumption  of  malice  arises ;  that  is, 
the  law,  it  is  said,  will  imply  malice  from  the  fact  of  the  absence  of 
apparent,  well-founded  danger  of  great  bodily  harm,  or  such  provo- 
cation as  is  calculated  to  excite  irresistible  passion.*^ 

§  3017.  Presumption  as  to  malice — In  general. — A  presumption 
as  to  malice  and  premeditation  may  arise  from  the  circumstances  cf 
the  case.^*  So  it  is  held  that  a  presumption  of  malice  may  arise  upon 
proof  of  the  mere  fact  of  killing."^  And  it  is  held  that  every  unex- 
plained homicide  is  presumptively  malicious  until  the  contrary  ap- 
pears.**'   Thus  it  has  been  said  that  where  the  fact  of  killing  a  human 

^^  Kilpatrick  v.  Commonwealth,  3  f erred    from    circumstances;     Cool- 

Phila.  (Pa.)  237.  man  v.  State,   (Ind.)   72  N.  E.  568; 

"  People  v.  Kirby,  2  Park.  Cr.  Cas.  see  also,  Crosby  v.  People,  137  111. 

(N.  Y.)  28.  325,  27  N.  E.  49;   State  v.  Woodard, 

5«  State  v.  Curtis,  70  Mo.  594.  84  Iowa  172,  50  N.  W.  885;   Lane  v. 

^^McDaniel  v.  State,  16  Miss.  401,  State,  85  Ala.  11,  4  So.  730. 

47  Am.  Dec.  93;   State  v.  Coleman,  «  Epperson  v.  State,  73  Tenn.  291; 

20  S.  Car.  441;  see  also,  Kota  v.  Peo-  State  v.   Douglass,   28   W.   Va.   297; 

pie,  136  111.  655,  27  N.  E.  53;  People  from  intentional  killing,  in  absence 

V.  McDonald,  2  Idaho  14,  1  Pac.  345.  of  anything  to  show  want  of  malice; 

*"  Davison  v.  People,  90  111.  221.  State  v.   McDaniel,   68   S.   Car.   304, 

"Conner  v.    State,   12    Tenn.   137,  47   S.  E.  384,  102  Am.  St.  661;    see 

26  Am.  Dec.  217.  also,  first  and  third  notes  to  last  pre- 

*-  State  v.  Brooks,  1  Ohio  Dec.  (Re-  ceding  section, 

print)  407,  9  Wkly.  L.  J.  109.  *"  McDaniel  v.  State,  16  Miss.  401, 

"Peri  V.  People,  65  111.  17.  47  Am.  Dec.  93;  State  v.  Brown.  12 

"  Hicks  V.  State,  25  Fla.  535,  6  So.  Minn.    538;    Clements    v.    State,    50 

441;    malice  may,  of  course,  be  in-  Ala.  117;  State  v.  Testerman,  68  Mo. 


§   3017.]  HOMICIDE.  298 

being  has  been  clearly  established,  and  has  not  been  shown  to  be  the 
result  of  accident,  or  to  have  been  done  under  such  circumstances  as 
will  in  law  mitigate,  excuse  or  justify  the  act,  the  law  implies  malice 
without  further  proof,  and  makes  the  killing  murder.*^  It  has  also 
been  held  that  a  presumption  of  malice  arises  where  the  act  is  com- 
mitted while  the  accused  is  engaged  in  the  perpetration  of  some  other 
felonious  or  unlawful  act.*^  And  a  presumption  of  malice  may  arise 
upon  proof  of  the  intentional  use  of  a  deadly  weapon.*^  And  where 
the  reckless  use  of  a  dangerous  weapon  resulted  in  injury,  it  was  held 
that  malice  would  be  implied.^"  Thus,  it  has  been  held  that  a  pre- 
sumption arises  that  a  shot  was  fired  maliciously,  where  the  defend- 
ant recklessly  fired  his  pistol  into  a  crowded  room  and  killed  deced- 
ent.''^ And  it  has  been  held  that  malice  arises  from  the  use  of  a  knife 
causing  death,  though  it  was  only  a  pocket-knife.^^  So,  generally, 
a  presumption  of  malice  may  well  arise  where  an  act  is  unlawful,  and 
is  of  such  a  character  as  that  the  known  consequences  of  it  would  nat- 
urally be  to  produce  great  bodily  harm  or  to  endanger  the  life  of  the 
person.^^  And  so  when  it  is  shown  that  the  act  was  done  with  a 
deadly  weapon,  and  no  circumstances  of  mitigation,  justification  or 
excuse  appear,  it  is  said  that  the  law  implies  malice.^*  Malice  may 
be  reasonably  presumed  from  the  wilful  administration  of  poison  in 
a  quantity  sufficient  to  cause  death  under  ordinary  circumstances. ^'^ 
And  it  has  been  held  that  where  the  existence  of  deliberate  malice  in 
the  slayer  is  once  ascertained,  its  continuance  down  to  the  perpetra- 
tion of  the  meditated  act  must  be  presumed  until  there  is  evidence 
to  repel  it,  and  to  show  that  the  wicked  purpose  has  been  aban- 
doned.^'' 

408;   Preuit  v.  People,  5  Neb.  377;  "  Brown  v.  Commonwealth,  13  Ky. 

Davis    V.    State,    25    Ohio    St.    369;  L.  R.  372,  17  S.  W.  220. 

Lewis  V.  State,  90  Ga.  95,  15   S.  E.  "Webb  v.    State,   100  Ala.   47,   14 

697.  So.  865. 

«  Brown  v.  State,  4  Tex.  App.  275.  "  Boyle  v.  State,  105  Ind.  469,  5  N. 

^^  State  V.  Thomas,  Houst.  Cr.  Cas.  E.  203,  55  Am.  R.  218. 

(Del.)  511;  see  notes  in  63  L.  R.  A.  =' McAdams  v.  State,  25  Ark.  405; 

355  and  660.  State    v.    Walker,    9    Houst.    (Del.) 

^^  State  V.  Curtis,  70  Mo.  594;  War-  464,  33  Atl.  227;   State  v.  Decklotts, 

rick.  Ex  parte,  73  Ala.  57;    State  v.  19  Iowa  447. 

Bertrand,  3  Ore.  61;  Head  v.  State,  ==  People  v.  Sanchez,  24  Cal.  17. 

44  Miss.  731;  State  v.  Ward,  5  Har.  =^«  State  v.  Tilly,  3  Ired.  (N.  Car.) 

(Del.)   496.  424;  Potsdamer  v.  State,  17  Fla.  895; 

^^"Dunaway  v.  People,  110  111.  333,  Holland  v.   State,   12  Fla.   117;    but 

51  Am.  R.  686.  compare,    State    v.    Brown,    64    Mo. 


299  PRESUMPTIONS.  [§    3018. 

§  3018.  Presumptions — When  not  presumed — Conflicting  views. 
The  general  rule  is  that  even  though  malice  may  be  presumed  from 
the  mere  fact  of  killing  when  the  killing  is  proved,  and  no  more,  yet 
when  all  the  facts  and  circumstances  of  the  killing  are  in  evidence, 
and  the  jury  must  say  from  the  testimony  what  was  the  intention  with 
which  the  act  was  committed  then  malice  becomes  a  matter  of  proof 
and  is  not  presumed  as  a  matter  of  law.^^  Thus  where  all  the  cir- 
cumstances attending  the  homicide  are  in  evidence,  there  is  no  pre- 
sumption of  malice  from  the  mere  fact  of  the  killing,^*  although  it 
may,  of  course,  be  inferred.  It  is  said  by  Mr.  Underbill  that:  "A 
rebuttable  presumption  of  law  of  a  malicious  intention  always  arises 
as  soon  as  a  homicide  with  a  deadly  weapon  is  proved.  This  may 
become  conclusive  if  no  defense  is  made.  But  it  may  be  rebutted  by 
evidence  coming  from  the  state.  If  this  does  not  happen  the  accused 
may  offer  evidence  to  show  he  did  the  killing  in  self-defense  or  while 
insane.  The  presumption  of  malice  thus  removed,  it  is  for  the  jury 
to  find  whether  malice  existed  on  all  the  facts  and  not  merely  from 
the  use  of  a  deadly  weapon  alone.  If  malice  is  ascertained  to  have  ex- 
isted before  the  killing,  as,  for  example,  from  evidence  of  threat,  its 
•continuance  down  to  the  homicide  will  be  presumed,  as  matter  of 
law,  in  the  absence  of  evidence  to  the  contrary."^^  Where  the  evi- 
dence which  proves  the  killing  excludes  a  presumption  of  malice  from 
the  use  of  a  deadly  weapon,  malice  must  be  established  by  other  evi- 
dence.®" And  it  has  been  held  that  malice  is  implied  from  the  fact  that 
a  deadly  weapon  was  used  in  the  killing  of  another,  unless  it  first  ap- 
pears that  the  killing  was  wilfully  or  intentionally  done."  And  it 
is  also  held  that  a  presumption  of  malice  does  not  necessarily  arise 
from  an  intent  to  inflict  a  personal  injury,  since  an  act,  to  be  ma- 

367;    Copeland  v.   State,   7  Humph.  Baxt.    (Tenn.)    67;    State  v.   Robin- 

(Tenn.)    479;    Cannon   v.    State,    57  son,  20  W.  Va.  713,  43  Am.  R.  799. 
Miss.  147;   McCoy  v.  State,  25  Tex.         =^  State  v.  Jones,  29  S.  Car.  201,  7 

33,  78  Am.  Dec.  520.  S.  E.  296;   State  v.  Ariel,  38  S.  Car. 

"State   V.   Alexander,   30    S.    Car.  221,  16  S.  E.  779;    Godwin  v.  State, 

74,  8  S.  E.  440,  14  Am.  St.  879;  Peo-  73  Miss.  873,  19  So.  712. 
pie  V.  West,  49  Cal.  610;   Eiland  v.         »» Underbill    Cr.    Ev.    §    320;    see. 

State,   52  Ala.  322;    Fitch  v.   State,  Riggs  v.  State,  30  Miss.  635. 
90  Ga.  472,  16  S.  E.  102;    Common-         «°  Compton  v.   State,  110  Ala.   24, 

wealth  v.  Hawkins,  3  Gray   (Mass.)  20  So.  119. 

463;   Vollmer  v.  State,  24  Neb.  838,         "^  State  v.  Cross,  42  W.  Va.  253,  24 

40  N.   W.   420;    Bryant  v.   State,   7  S.  E.  996;  see  also,  Godwin  v.  State, 

73  Miss.  873,  19  So.  712. 


§•   3019.]  HOMICIDE.  300 

licious,  must  either  be  wicked  or  wrongful.^-  So,  it  has  been  held 
that  intentional  killing  merely,  does  not  establish  "malice  afore- 
thought," as  such  killing  may  be  in  self-defense,  or  amount  only  to 
manslaughter,*'^  and  that  proof  of  deadly  intent  does  not  justify  an 
inference  of  malice  aforethought.^*  It  will  be  seen  by  comparing  the 
cases  cited  in  the  last  two  preceding  sections  with  those  cited  in  this 
section  that  there  is  some  conflict  among  the  decisions.  Some  of 
them,  perhaps,  go  too  far  in  one  direction  and  some  in  the  other; 
but  it  seems  to  us  that  the  tendency  is  too  much  toward  treating  the 
presumption  of  malice  that  may  arise  in  such  cases  as  a  presump- 
tion of  law,  when,  in  some,  if  not  most  instances,  it  would  seem  to 
be  that  the  presumption,  if  any,  is  one  of  fact,  or  in  others  a  rule  of 
substantive  law  is  involved  rather  than  a  presumption  of  law.®^ 

§  3019.  Presumptions  as  to  degree  of  offense. — It  is  held  that 
where  the  defendant  deliberately  and  intentionally  shot  the  deceased, 
the  presumption  arises  that  it  was  an  act  of  murder.^^  And  it  is  gen- 
erally held  that  a  presumption  arises  that  the  offense  is  murder  in 
the  second  degree  where  the  proof  amounts  to  the  mere  fact  of  kill- 
ing, unaccompanied  by  circumstances  of  Justification,  excuse  or  miti- 
gation.*''^   Most  jurisdictions  hold  that  the  mere  fact  of  killing  raises 

*=^  Field  V.  State,  50  Ind.  15.  State,  83  Ala.  5,  3  So.  525;  People  v. 

«^  State  V.  Vaughan,  22  Nev.  285,  Conroy,     97     N.     Y.     62;     State     v. 

39  Pac.  733.  Swayze,  30  La.  Ann.  1323. 

<^  Seals  V.  State,  3  Baxt.    (Tenn.)  «« State  v.  SMppey,  10  Minn.  223, 

459.  88  Am.  Dec.  70. 

''^See,  Vol.  I,  §  98,  cited  with  ap-  "Harris  v.  State,  8  Tex.  App.  90; 

proval  in.  Territory  v.  Gutierez,  (N.  Preuit  v.  People,  5  Neb.  377;    State 

Mex.)    79    Pac.    716,    718;    see    also,  v.   Miller,   9    Houst.    (Del.)    564,    32 

Fitch  V.  State,  37  Tex.  Cr.  App.  500,  Atl.    137 ;    Commonwealth    v.    Cook, 

36  S.  W.  584;  Danforth  v.  State,  44  166  Pa.  St.  193,  31  Atl.  56;   State  v. 

Tex.   Cr.   App.    105,    69    S.    W.    159;  Payne,  10  Wash.  545,  39  Pac.  157; 

State  V.   Earnest,   56   Kans.   31,   42  Commonwealth  v.  Drum,  58  Pa.  St. 

Pac.  359;   Farris  v.  Commonwealth,  9;     State    v.    Foster,    61    Mo.    549; 

14  Bush  (Ky.)  362;  State  v.  McDon-  Stokes  v.   People,  53   N.  Y.  164,   13 

nell,  S2  Vt.  491;  to  the  effect  that  no  Am.  R.  492;  Dukes  v.  State,  14  Fla. 

legal  presumption   of  malice  arises  499;   note  in,  18  Am.  Dec.  784;    see 

from  the  mere  killing,  see.  United  also.  State  v.  Carver,  22  Ore.  602,  30 

States  v.  Armstrong,  2  Curt.  (U.  S.)  Pac.  315;  State  v.  Hobbs,  37  W.  Va. 

446;    Newton  v.   State,   21   Fla.   53;  812,  17  S.  E.  380;  Simpson  v.  State, 

State  v.  Vaughan,   22  Nev.   285,   39  56  Ark.  8,  19  S.  W.  99;  Williams  v. 

Pac.  733;   State  v.  Greenleaf,  71  N.  State,  83  Ala.  16,  3  So.  616. 
H.  606,  54  Atl.  38;  see  also,  Fallin  v. 


301  DEGREE  OF  OFFENSE.  [§  3019. 

a  presumption  of  intention  to  kill  sufficient  to  constitute  murder,  but 
not  to  constitute  murder  in  the  first  degree.*'^  That  is,  the  fact  of 
killine:  being  proved,  the  law  presumes  only  murder  in  the  second 
degree.''''  In  some  jurisdictions  the  mere  fact  of  killing  is  held  to 
raise  no  presumption  as  to  the  degree  of  murder.^''  It  is  generally 
lield,  however,  that  the  presumption  against  the  defendant  arising 
from  a  killing  with  a  deadly  weapon  rises  no  higher  than  murder  in 
the  second  degree  until  it  is  shown  by  the  prosecution  to  be  murder 
in  the  first  degree.''^  In  some  jurisdictions  it  is  held  that  in  case 
the  jury  is  satisfied  that  the  accused  did  the  killing,  the  burden  is 
on  the  defendant  in  order  to  reduce  the  grade  of  the  offense  lower 
than  murder  in  the  second  degree,  and  on  the  prosecution  to  raise  it 
to  murder  in  the  first  degree."  And  so  it  is  held  that  where  the 
proof  shows  merely  an  unlawful  intentional  killing,  the  homicide 
cannot  be  deemed  more  than  murder  in  the  second  degree."  In  Wis- 
consin and  a  few  other  states,  however,  it  is  held  that  from  the  tak- 
ing of  the  life  of  a  human  being  by  an  act  of  such  a  nature  as  is 
naturally  and  probably  calculated  to  cause  death,  the  law  presumes 
that  the  perpetrator  intended  the  result  which  followed  and  is  guilty  of 
murder  in  the  first  degree,  in  the  absence  of  evidence  showing  that 
the  homicide  was  justifiable  or  excusable,  or  so  rebutting  the  presump- 
tion of  intent  as  to  raise  a  reasonable  doubt.'^*  And  in  some  jurisdic- 
tions it  is  held  that  the  prosecution  must  first  overcome  the  pre- 
sumption of  innocence,  and  then  show  beyond  any  reasonable  doubt 
the  degree  of  the  offense." 

"'  Milton  V.  State,  6  Neb.  136,  and  ""■  Cupps  v.  State,  120  Wis.  504,  97 

authorities   cited   in   last   preceding  N.  W.  210,  98  N.  W.  546,  102  Am.  St. 

note.  996;  the  court  in  this  case  calls  at- 

•"Witt  V.  State,  6  Cold.  (Tenn.)  5.  tention  to  the  difference  in  the  stat- 

'"'  People  V.  Belencia,  21  Cal.  544.  utes  and  criticizes  several  textwrit- 

"  Commonwealth  v.  Drum,  58  Pa.  ers  for  failing  to  note  the  distinc- 

9;  and  authorities  cited  in  note  67  of  tion.    See  also,  State  v.  Lautenschla- 

this  chap.  ger,  22  Minn.  514;    State  v.  Brown, 

■=  Commonwealth  v.  Mika,  171  Pa.  41  Minn.  319,  43  N.  W.  69;   State  v. 

St.  273,  33  Atl.  65;  Longley  v.  Com-  Lentz,  45  Minn.  177,  47  N.  W.  720; 

monwealth,  99  Va.  807,  37  S.  E.  339;  2  Bishop  Cr.  Proc,  §  602. 

Myers  v.  Commonwealth,  90  Va.  705,  "*  State  v.  Meyer,  58  Vt.  457,  3  Atl. 

19  S.  E.   881;    State  v.  Hertzog,  55  195.     In  other  words  it  is  held  that 

W.  Va.  74,  46  S.  E.  792.  the    presumption    is    first    of    inno- 

"McCue  v.  Commonwealth,  78  Pa.  cence,  and  then  of  the  lower  degrees 

St.  185,  21  Am.  R.  7;  Brown  v.  State,  in  their  order. 

109  Ala.   70,  20   So.  103;    Hamby  v. 

State,  36  Tex.  523. 


§    3020.]  HOMICIDE.  30^ 

§  3020.  Other  presumptions. — As  intimated  in  the  last  preceding 
section,  it  is  tlie  rule  in  most  jurisdictions  that  where  the  homicide 
has  been  proved  without  more,  there  is  no  presumption  that  it  was 
done  with  premeditation,  and  the  presumption  usually  is  that  it  is 
murder  in  the  second  degree.'*'  So  the  use  of  a  deadly  weapon  only 
raises  a  presumption  of  malice,  and  not  of  premeditation  and  de- 
sign.'^^  But  deliberation,  premeditation  and  malice  may  be  inferred 
from  the  circumstances  connected  with  the  killing.'^  It  has  been 
held  that  a  presumption  does  not  arise  that  a  gun  was  loaded  with 
a  bullet  or  other  substance  likely  to  produce  death  simply  from  a 
threat  to  shoot  being  immediately  followed  by  the  discharge  of  a 
gun.'^  But  other  cases  hold  that  a  gun  or  pistol  discharged  or  at- 
tempted to  1)0  discharged  at  another  under  such  circumstances  will 
be  presumed  to  have  been  loaded  with  a  deadly  charge,^"  or  at  least 
that  such  an  inference  may  be  drawn.  It  has  been  held  that  where 
the  decased  made  a  certain  threat  to  kill  a  certain  person  in  case  a 
certain  thing  was  consummated  a  presumption  does  not  necessarily 
arise  that  in  going  to  that  place  he  went  to  carry  his  threat  into  ex- 
ecution.*^^ Until  the  prosecution  establishes  that  the  death  was  the 
result  of  a  criminal  act,  death  is  generally  presumed  to  have  resulted 
from  natural  causes. ^^    And  it  has  been  held  that  on  a  trial  for  the 

'« State  V.  Adin,  7  Ohio  Dec.   (Re-  v.  Walker,  98  Mo.  95,  9  S.  W.  646, 

print)  25,  1  Wkly.  L.  B.  38;  and  au-  11  S.  W.  1133;   Adams  v.  State,  28 

thorities   cited   in   note   67    of   this  f  la.  511;  People  v.  Kennedy,  159  N. 

chap.;    see  also.  Fields  v.   State,  52  Y.  346,  54  N.  E.  51,  70  Am.  St.  557; 

Ala.  348;   Brown  v.  State,  109  Ala.  State  v.  Booker,  123  N.  Car.  713,  31 

70,  20  So.  103;  State  v.  Lane,  64  Mo.  S.  E.  376;  People  v.  Neary,  104  Cal. 

319;    State  v.  Bowles,  146  Mo.  6,  47  373,  37  Pac.  943;   Commonwealth  v. 

S.  W.  892,  69  Am.  St.  598;   O'Mara  Birriolo,  197  Pa.  St.  371,  47  Atl.  355; 

V.  Commonwealth,  75  Pa.  St.  424.  Waggoner  v.  State,   (Tex.  Cr.  App.) 

"North    Carolina    v.    Gosnell,    74  55  S.  W.  491;  State  v.  Anderson,  10 

Fed.  734;    see  also,  Fallin  v.  State,  Ore.  448. 

83    Ala.    5;     3    So.    525;     State    v.  "  Fastbinder  v.  State,  42  Ohio  St. 

Stoeckli,  71  Mo.  559,  8  Mo.  App.  598;  341. 

State  V.  Herrell,  97  Mo.  105,  10  S.  W.  '"  State  v.  Munco,  12  La.  Ann.  625; 

387,  10  Am.  St.  289;   State  v.  Hicks,  see  also,  Mullen  v.  State,  45  Ala.  43, 

12o'n.  Car.  636,  34  S.  E.  274;  Dains  6  Am.  R.   691;    Porter  v.   State,  57 

V.  State,  2  Humph.  (Tenn.)  438;  but  Miss.  300;  Bedford  v.  State,  44  Tex. 

compare.  State  v.  Brown,  41  Minn.  Cr.  App.  97,  69  S.  W.  158. 

319,  43  N.   W.   69;    Cupps  v.   State,  "State  v.  Brown,  64  Mo.  367. 

120  Wis   504,  97  N.  W.  210,  98  N.  W.  ^'  State  v.  Moxley,  102  Mo.  374,  14 

546,  102  Am.  St.  996.  S.  W.  969,  15  S.  W.  556. 

"  Green  v.  State,  13  Mo.  382 ;  State 


303  BURDEN  OF  PROOF.  [§§  3021,  3022. 

murder  of  an  officer  while  attempting  to  arrest  defendant  for  un- 
lawfully carrying  a  weapon,  the  law  will  presume  that  the  citizens 
who  informed  deceased  that  defendant  had  been  so  carrying  a  weapon 
were  credible  witnesses.^' 

§  3021.  Burden  of  proof — As  to  malice. — Proof  of  malice,  express 
or  implied,  is  necessary  to  a  conviction  for  murder.^*  And  the  bur- 
den of  proving  malice  is  on  the  prosecution  when  all  the  attending 
circumstances  appear  in  evidence.^ ^  And  it  has  been  held  that  the 
burden  of  proof  is  on  the  prosecution  to  show  that  defendants  brought 
on  the  difficulty  with  deceased  in  which  the  killing  occurred.^*'  But 
in  many  jurisdictions  where  there  has  been  a  killing  with  a  deadly 
W'Capon,  or  the  presumption  of  malice  otherwise  arises,  the  burden  of 
proving  excuse  or  mitigation  is  held  to  be  on  the  defendant.^^ 

§  3022.  Burden  of  proof — As  to  defenses  of  self-defense  and  in- 
sanity.— In  some  jurisdictions  the  burden  of  proof  as  to  self-defense 
and  to  insanity  is  said  to  be  on  the  defendant.'^*  There  is  a  large 
number  of  cases  to  the  effect  that  the  burden  of  proving  self-defense 
is  on  the  defendant.^^*^  Thus,  it  is  held  that  when  the  state  has  estab- 
lished the  charge  beyond  a  reasonable  doubt,  and  defendant  pleads 
self-defense,  the  burden  is  on  him  to  show  it  by  a  preponderance  of 
testimony;^''  and  that  on  a  trial  for  the  malicious  shooting  of  a  per- 

*^  Miller  v.  State,  32  Tex.  Cr.  App.  prosecution  of  ultimately  convincing 

319,  20  S.  W.  1103.  the  jury  of  the  defendant's  guilt  be- 

*•  State  V.  Walker,  9  Houst.  (Del.)  yond  a  reasonable  doubt. 
464,  33  Atl.  227.  ^'Weaver    v.    State,    24    Ohio    St. 

^^Commonwealth    v.    Hawkins,    3  584;    State   v.   Baber,    11    Mo.    App. 

Gray  (Mass.)  463;  Godwin  v.  State,  586;   United  States  v.  Crow  Dog,  3 

73  Miss.  873,  19  So.  712;   People  v.  Dak.  106,  14  N.  W.  437;  State  v.  Bal- 

West,  49  Cal.  610;  Vollmer  v.  State,  lou,  20  R.  I.  607,  40  Atl.  861;   State 

24  Neb.  838,  40  N.  W.  420;   State  v.  v.  Manns,  48  W.  Va.  480,  37  S.  E. 

Alexander,  30  S.  Car.  74,  8  S.  E.  440,  613;  State  v.  Johnson,  49  W.  Va.  684. 

14  Am.  St.  879.  39   S.  E.   665;    People  v.   Tidwell,  5 

^«  Gibson  .V.  State,  89  Ala.  121,  8  Utah    88,    12    Pac.    638;    People    v. 

So.  98,  18  Am.  St.  96.  Schryver,  42  N.  Y.  1;   State  v.  Ber- 

"'  State    v.    Whitson,    111    N.    Car.  trand,  3  Ore.  61. 
695,   16   S.  E.   332;    and   authorities         ■*»  Silvus  v.  State,  22  Ohio  St.  90; 

cited  in  next  two  sections.     But,  as  Roden  v.   State,   97   Ala.   54,  12   So. 

already    stated,    when    the    circum-  419,    and   authorities    cited    in    last 

stances  are  shown  this  presumption,  note,  supra. 

if  any,  may  be  overcome,  and   we        '"'  State  v.  Welsh,  29  S.  Car.  4,  6 

think  the  burden  remains  upon  the  S.  E.  894. 


§  3022.]  HOMICIDE.  304 

son  with  intent  to  kill,  the  burden  of  proving  that  the  act  was  done 
in  self-defense  rests  on  the  defendant.®^  So,  in  a  very  recent  case 
where  it  appears  that  defendant  killed  the  deceased  by  the  intentional 
use  of  a  deadly  weapon,  it  was  held  that  the  burden  was  on  defendant 
to  show  that  such  use  of  the  weapon  was  in  self-defense  or  otherwise 
excusable,  or  occurred  on  sudden  heat  caused  by  adequate  provoca- 
tion.**-  But  where  the  -defendant  has  made  out  a  case  of  self-defense, 
the  burden  of  proving  that  he  was  at  fault  in  bringing  about  the  diffi- 
culty has  been  held  to  be  upon  the  state.®^  In  some  jurisdictions  it 
is  held  that  the  burden  is  on  the  state  to  prove  beyond  a  reasonable 
doubt  that  a  killing  was  not  excusable  by  reason  of  self-defense.^* 
And  in  some  others,  although  the  burden  is  said  to  be  upon  the  de- 
fendant, it  is  sufficient  for  him  to  remove  it  by  creating  a  reasonable 
doubt.^^  Indeed,  even  where  the  burden  is  held  to  be  upon  the  de- 
fendant to  show  self-defense  beyond  a  reasonable  doubt,  it  seems  that 
this  relates  to  the  facts  tending  to  establish  that  defense,  and  that  if 
there  is  still  a  reasonable  doubt  upon  the  evidence,  he  should  be  ac- 
quitted.^*^ As  to  the  defense  of  insanity  it  is  held  that  the  absence 
of  any  known  cause  or  apparent  motive  to  commit  a  homicide  can- 
not of  itself  raise  a  presumption  of  insanity.^^  There  is  much  con- 
flict among  the  authorities  as  to  the  burden  of  proof  upon  the  ques- 
tion of  insanity,  a  few  courts  holding  that  it  must  be  proved  beyond 
a  reasonable  doubt,  others  holding  that  it  must  be  proved  by  a  pre- 
ponderance of  the  evidence,  or  to  the  satisfaction  of  the  jury,  and 
still  others  holding  that  there  should  be  an  acquittal  if  there  is  a  rea- 
sonable doubt  upon  all  the  evidence.  This  question,  however,  is  fully 
discussed  elsewhere.^*  Although  the  distinction  is  seldom  noted  in 
the  decisions,  we  think  that  when  the  burden  is  said  to  be  upon  the  de- 

''1  Weaver  v.  State,  24  Ohio  St.  584.  S.  E.  13;  State  v.  Prater,  52  W.  Va. 

»='Coolman  v.  State,    (Ind.)    72  N.  132,  43  S.  E.  230. 

E.  568.  «» Brown  v.  State,  62  N.  J.  L.  666, 

°=  Holmes  v.  State,  100  Ala.  80,  14  42  Atl.  811;    State  v.  Jones,  78  Mo. 

So.  864.  278;  King  v.  State,  74  Miss.  576,  21 

^  State  v.  Donahoe,  78  Iowa  486,  So.  235;  State  v.  Pierce,  8  Nev.  291; 

43  N.  W.  297.  State  v.  McGarry,  111  Iowa  709,  83 

^^Henson  v.  State,  112  Ala.  41,  20  N.   W.   718    (so   held   as  to   alibi); 

So.  79;    People  v.   Bushton,  80  Cal.  People  v.  Callaghan,  4   Utah   49,   6 

160,  22  Pac.   549;    People  v.   Neary,  Pac.  49. 

104  Cal.  373,  37  Pac.  943;   McKenna  "Carter  v.  State,  12  Tex.  500,  62 

v.    State,    61    Miss.    589;    People    v.  Am.  Dec.  539. 

Downs,  123  N.  Y.  558,  25  N.  E.  988;  "' See  Vol.  IV,  Chap.  127,  and  Vol. 

State  v.   Hutto,   66   S.  Car.   449,   45  I,  §  126. 


305  BURDEN    OF    PROOF.  [§    3023. 

fendant  to  prove  justification,  mitigation  or  excuse,  or  the  like,  the 
burden  of  going  forward  or  producing  evidence  is  usually  meant,  and 
that  the  burden  of  ultimately  convincing  the  jury  of  the  defendant's 
guilt  on  the  whole  evidence  beyond  a  reasonable  doubt  rests  and  re- 
mains upon  the  prosecution. 

§  3023.     Burden  of  proof — In  general. — The  burden  of  proof  is  on 

the  state  to  establish  the  death  of  a  human  being  and  the  crim- 
inal agency  producing  it.  Indeed,  the  burden  of  proof  is  upon  the 
prosecution  to  establish  all  the  essential  elements  of  the  crime  and 
prove  the  defendant's  guilt  beyond  a  reasonable  doubt.®^  The  usual 
order  is  to  first  prove  the  corpus  delicti,  which  is  done  by  proving 
the  death  and  identifying  the  dead  body  as  that  of  the  person  alleged 
to  have  been  killed,  and  showing  the  criminal  agency  causing  such 
death.  The  accused  may  then  be  identified  and  the  crime  brought 
liome  to  him,  and  the  other  essential  elements  of  the  crime  shown. 
There  can  be  no  conviction  in  the  absence  of  satisfactory  proof  of  the 
corpus  delicti,  but  the  order  of  proof  is  largely  within  the  discretion 
of  the  trial  court,  and,  as  shown  in  the  first  chapter  of  this  volume, 
even  the  corpus  delicti  may  be  proved,  in  a  proper  case,  by  circum- 
stantial evidence.  So,  while  we  think  it  is  true  that  the  burden  is 
upon  the  prosecution  to  establish  the  defendant's  guilt  beyond  a  rea- 
sonable doubt,  the  presumptions  already  considered  often  exert  an 
important  influence  when  facts  are  proved  from  which  they  arise,  and 
in  some  jurisdictions  the  burden  is  said,  in  a  sense  at  least,  to  shift 
to  the  defendant  as  to  certain  matters  thereafter.  It  has  been  held 
that  the  burden  of  proof  is  on  the  state  to  prove  beyond  a  reason- 
able doubt  that  the  death  of  the  deceased  occurred  before  the  indict- 
ment was  returned.""  So,  it  is  held  that  the  burden  of  proof  is  on  the 
prosecution  to  satisfy  the  jury  of  the  guilt  of  the  accused  where  the 
defense  is  based  on  facts  and  circumstances  growing  out  of  the  charge 
itself;"^  and  that  the  burden  of  proof  is  on  the  prosecution  to  clearly 
show  that  the  weapon  was  of  the  character  charged  in  order  to  sus- 
tain an  indictment  charging  the  commission  of  an  assault  with  intent 
to  commit  murder  by  the  use  of  a  weapon  likely  to  produce  death."- 

«« Wharton  v.  State,  73  Ala.  366;  son  v.  People,  4  Park.  Cr.  Cas.   (N. 

Maher  v.  People,   10   Mich.  212,   81  Y.)   619. 

Am.    Dec.    781;    Commonwealth    v.  "« Power  v.   People,  17  Colo.   178, 

Hawkins.  3  Gray  (Mass.)  463;  Kent  28  Pac.  1121. 

V.  People.  8  Colo.  563,  9   Pac.   852;  '"Hill  v.  People,  1  Colo.  436. 

Jones  v.  State.  13  Tex.  App.  1 ;  Wil-  "=  Paschal  v.  State,  68  Ga.  818. 
Vol.  4  Elliott  Ev.— 20 


§  3023.]  HOMICIDE.  306 

But  it  has  also  been  held  that  the  burden  is  not  on  the  prosecution  to 
show  absence  of  justification  or  legal  excuse  ;^°^  nor  to  prove  that 
the  deceased  was  without  arms.^"*  The  burden  has  been  held  to  be 
on  the  defendant  to  rebut  the  presumption  of  malice  arising  from  the 
use  of  a  deadly  weapon.^°^  It  has  also  been  held  that  the  burden  of 
proving  matters  of  mitigation  rests  upon  the  defendant.^"®  Thus, 
it  is  held  that  the  burden  of  proving  facts  which  authorize  the  tak- 
ing of  life  to  preserve  life  is  upon  the  defendant  ;^'''^  and  that  when  a 
defendant  relies  upon  mitigating  circumstances  to  reduce  a  homicide 
from  murder  to  manslaughter,  the  burden  rests  upon  him,  after  the 
killing  is  shown,  to  prove  the  mitigating  facts.^"^  So,  if  a  man  pre- 
sents a  gun  at  anotlier  within  shooting  distance,  it  has  been  said  to 
be  a  legal  presumption  that  the  gun  was  loaded;  and  it  devolves  on 
the  accused  to  prove  that  it  was  not  loaded,  and  that  he  knew  it  was 
not."^  The  burden  of  proof  has  also  been  held  to  be  on  the  accused 
to  show  that  a  person  alleged  to  have  been  murdered  is  still  alive  when 
the  death  of  such  person  is  prima  facie  established  by  the  identifica- 
tion of  a  dead  body  as  his ;"°  and  that  the  burden  of  proof  is  also  on 
the  accused  to  show  by  a  preponderance  of  the  testimony  that  the 
killing  was  justifiable  when  the  fact  of  the  homicide  is  once  estab- 
lished."^ So,  it  has  been  held  proper  to  instruct  that  the  burden  is 
on  the  defendant  to  establish  his  claim  that  he  was  so  intoxicated 
at  the  time  of  the  killing  as  to  be  incapable  of  forming  any  intent.^^^ 
In  line  with  the  cases  already  cited,  if  not  indeed  beyond  that  line, 
it  is  said  in  a  recent  text-book :  "As  a  general  rule  it  may  be  stated 
that  all  homicide  is  malicious,  and,  of  course,  amounts  to  murder, 
unless  when  justified,  excused  or  alleviated.  All  these  circumstances 
of  justification,  excuse  or  alleviation  must  be  shown  by  the  prisoner.""^ 

"="  State  v.  Brown,  64  Mo.  367.  "'  People  v.  Raten,  63  Cal.  421. 

1"*  State   V.    "Wright,    41    La.    Ann.  '"State  v.  Corrivau,    (Minn.)    100 

605,  6  So.  137.  N.  W.  638. 

"^  State   v.   Peo.   9   Houst.    (Del.)  "==  Hughes  Cr.  Law  &  Proc,  §  82; 

488,  33  Atl.  257;   People  v.  March,  6  O'Mara  v.  Commonwealth,  75  Pa.  St. 

Cal.  543.  424,  430;  State  v.  Tommy,  19  Wash. 

'""State  v.  Mazon,  90  N.  Car.  676.  270,  53  Pac.  157;  State  v.  Mason,  54 

'"^  Lewis  V.  State,  88  Ala.  11,  6  So.  S.  Car.  240,  32  S.  E.  357;    State  v. 

755.  Byrd,  121  N.  Car.  684,  28  S.  E.  353; 

"» State  V.  Jones,  98  N.  Car.  651,  1  McClain  Cr.  Law,  §  333;   4  Black- 

3  S.  E.  507.  stone  Comm.  201;  Davis  v.  State,  51 

">»  Caldwell  v.  State,  5  Tex.  18.  Neb.  301,  70  N.  W.  984;   Linehan  v. 

''"State  v.  Vincent,  24   Iowa  570,  State,  113  Ala.  70,  21  So.  497;  People 

95  Am.  Dec.  753.  v.    Marshall,    112    Cal.    422,   44   Pac. 


307 


QUESTIONS  OF  LAW  OR  FACT. 


[§  3024. 


But  it  is  held  in  several  cases  that  the  burden  is  not  on  the  defendant 
to  prove  that  the  homicide  was  accidental,  and  in  a  recent  case  it  is 
said:  "The  rule  has  been  established  in  this  state  that  where  self- 
defense  is  pleaded  to  an  indictment,  the  defendant  must  establish  it 
by  the  preponderance  of  the  evidence,  but  at  the  same  time  the  guilt 
of  the  accused  must  be  made  to  appear  beyond  a  reasonable  doubt."* 
Whether  such  a  rule  as  applied  to  self-defense  is  sound  or  practically 
useful,  we  need  not  now  inquire.  But  we  do  not  think  that  a  defense 
that  the  homicide  was  accidental  is  in  any  sense  an  affirmative  de- 
fense. It  is  distinguishable  from  self-defense  as  a  plea,  which  admits 
an  intentional  killing,  and  sets  up  as  justification  a  necessity  to  kill 
in  order  to  save  the  accused  from  death  or  serious  bodily  harm; 
whereas  a  defense  of  homicide  by  accident  denies  that  the  killing  was 
intentional."  ^^^ 

§  3024.     Questions  of  law  or  fact. — It  is  frequently  important  to 
know  whether  the  court  or  jury  should  determine  what  is  a  deadly 


718;  Territory  v.  Lucero,  8  N.  Mex. 
543,  46  Pac.  18;  3  Greenleaf  Ev., 
§  144;  we  have  already  expressed 
the  opinion  that  the  burden  of  ulti- 
mately establishing  the  defendant's 
guilt  remains  upon  the  prosecution 
throughout,  and  when  it  is  said  that 
the  burden  shifts  or  is  upon  the  de- 
fendant, we  think  that  this  can  only 
mean  in  the  sense  of  going  forward 
or  producing  evidence.  For  a  state- 
ment of  a  distinction  between  ex- 
trinsic defenses  requiring  to  be 
affirmatively  proved  and  those  relat- 
ing to  the  res  gestae,  see,  Kent  v. 
People,  8  Colo.  563,  9  Pac.  852;  also 
see,  Jones  v.  State,  13  Tex.  App.  1. 

"*  Citing,  State  v.  Welsh,  29  S. 
Car.  4,  6  S.  E.  894;  State  v.  Bodie, 
33  S.  Car.  117,  11  S.  E.  624. 

"^  State  V.  McDaniel,  68  S.  Car. 
304,  47  S.  E.  384,  102  Am.  St.  661, 
672.  The  court  also  said:  "In,  Com- 
monwealth V.  McKie,  1  Gray  (Mass.) 
61,  61  Am.  Dec.  410,  the  logical  rule 
is  thus  stated:  'Where  the  defendant 
sets  up  no  separate  independent  fact 


in  answer  to  a  criminal  charge,  but 
confines  his  defense  to  the  original 
transaction  charged  as  criminal, 
with  its  accompanying  circumstan- 
ces, the  burden  of  proof  does  not 
change,  but  remains  on  the  govern- 
ment to  satisfy  the  jury  that  the  act 
was  unjustifiable  and  unlawful.'  In 
the  case  of.  State  v.  Cross,  42  W.  Va. 
253,  24  S.  E.  996,  the  court  held  that 
the  defense  of  accidental  killing  is  a 
denial  of  the  criminal  intent,  and 
throws  upon  the  state  the  burden  of 
proving  such  intent  beyond  a  reason- 
able doubt,  and  the  accused  is  not 
required  to  sustain  such  defense  by 
a  preponderance  of  testimony.  It 
was  error,  therefore,  to  instruct  the 
jury  to  disregard  the  plea  of  acci- 
dental homicide,  if  the  defendant 
failed  to  establish  it  by  the  prepond- 
erance of  the  evidence."  But  see. 
State  V.  Bonds,  2  Nev.  265;  Rex  v. 
Morrison,  8  Car.  &  P.  22,  34  E.  C.  L. 
587;  United  States  v.  Schneider,  21 
D.  C.  381. 


§  3024.]  HOMICIDE.  308 

weapon,  and  there  is  some  conflict  upon  the  question.  It  has  been 
held  that  whether  a  pocket-knife  is  a  deadly  weapon,  so  as  to  author- 
ize the  inference  of  malice  from  the  use  thereof,  is  a  question  for  the 
jury;^^''  and  that  a  piece  of  wood  three  feet  long,  three  inches  wide, 
and  one  inch  thick  cannot  be  said,  as  matter  of  law,  not  to  be  a  deadly 
weapon;  but  the  question  whether  it  is  or  not  should  be  left  to  the 
jury  to  determine.^^^  So,  whether  a  knife  or  a  brick-bat  is  a 
deadly  weapon  has  been  held  to  be  a  question  of  fact  for  the  jury.^^^ 
But  some  jurisdictions  hold  that  as  a  general  rule,  at  least  where  the 
weapon  appears  capable  of  inflicting  death  or  great  bodily  injury, 
the  question  whether  a  particular  weapon  is  deadly  or  not  is  one  of 
law  for  the  court,  and  not  of  fact  for  the  jury.^^''  Many  articles,  not 
ordinarily  used  as  deadly  weapons  may,  however,  be  used  as  such,^^'' 
and  in  doubtful  cases  the  question  is  usually  for  the  jury,  under  all 
the  circumstances.^"  And  the  question  as  to  what  was  the  instrument 
used  to  occasion  death  is  a  question  of  fact.^^^  Whether  a  killing  was 
premeditated  is  a  question  of  fact  for  the  jury.^-^  Hence,  it  is  held 
that  the  questions  of  deliberation  and  premeditation  are  peculiarly 
within  the  province  of  the  jury  i^^*  and  that  whenever  death  is  caused 
by  the  use  of  a  deadly  weapon,  it  is  for  the  jury  to  say,  under  the 
evidence,  whether  or  not  there  existed  "a  wilful,  deliberate  and  pre- 
meditated intention"  to  kill.^^^  It  is  also  for  the  jury  to  determine 
whether  there  was  any  motive  for  the  crime,^^®  and  whether  the  kill- 
ing was  in  a  passion  roused  by  an  adequate  provocation  has  been  held 
to  be  a  question  for  the  jury.^"  The  reasonableness  of  defendant's 
apprehension  that  deceased  was  about  to  commit  a  felony  is  also  a 

"« Sylvester  v.  State,  71  Ala.  17;  Nicholls  v.  State,  24  Tex.  App.  137, 

but  see,  Connell  v.  State,   (Tex.  Cr.  5  S.  W.  661;  State  v.  Brown,  67  Iowa 

App.)   81  S.  W.  746;  Webb  v.  State,  289,  25  N.  W.  248;    State  v.  Smith, 

100    Ala.    47,    14    So.    865;    State   v.  164  Mo.  567,  65  S.  W.  270;  Danforth 

Roan,  122  Iowa  136,  97  N.  W.  997.  v.  State,  44  Tex.  Cr.  App.  105,  69  S. 

1"  State  v.  Brown,  67  Iowa  289,  25  W.  159. 

N.  W.  248.  '"  State  v.  Speaks,  94  N.  Car.  865. 

"« State  V.  Harper,  69  Mo.  425.  i==  Lovett  v.  State,  30  Fla.  142,  11 

"»  State  V.  Rigg,  10  Nev.  284;  State  So.  550,  17  L.  R.  A.  705. 

V.  Craton,  6  Ired.  L.   (N.  Car.)   164;  "*  People  v.  Valencia,  43  Cal.  552. 

Krchnavy  v.  State,  43  Neb.  337,  61  "'Abernethy     v.     Commonwealth, 

N.   W.   628;    see   also,   Hamilton   v.  101  Pa.  St.  322. 

People,  113  111.  34.  '''  People  v.  Johnson,  139  N.  Y.  358, 

^"Birdwell    v.    State,     (Tex.    Cr.  34  N.  E.  920. 

App.)  48  S.  W.  583.  i"  Mackey  v.   State,   13   Tex.  App. 

^^Tesney    v.    State,    77    Ala.    33;  360. 


309  QUESTIONS  OF  LAW  OR  FACT.  [§  3024. 

question  for  the  jury."«  Thus,  it  is  a  question  of  fact  for  the  jury 
to  determine  whether  the  prisoner,  at  the  time  he  slew  the  deceased, 
had  reasonable  ground  to  believe  his  own  life  to  be  in  danger  from 
the  deceased.^-''  So  where  a  plea  of  self-defense  is  set  up,  it  is  a  ques- 
tion of  fact  for  the  jury  as  to  whether  or  not  defendant  could  have 
safely  retreated.''**  And  the  question  whether  an  injury  was  acci- 
dentally self-inflicted  is  also  for  the  jury.'^'  Whether  a  shot  would  or 
would  not  have  produced  death,  under  certain  circumstances  is  a  ques- 
tion for  the  jury."-  ^Yliether  the  name  of  the  deceased  mentioned 
in  an  indictment  for  murder  was  his  true  name  is  a  question  for  the 
jury.'^'^^  And  when  the  charge  is  the  killing  with  a  knife,  and  all 
the  evidence  taken  together  tends  to  identify  the  knife  used  in  evidence 
as  the  one  used  by  the  defendant,  the  question  of  the  identity  of  the 
knife  is  exclusively  for  the  jury.''*  It  is  for  the  jury  to  determine 
the  degree  of  the  crime.'^n  rpj^^^  -^^  ^^  -g  ^|^g  province  of  the  jury, 
under  proper  instructions  from  the  court,  to  determine  the  degree 
of  defendant's  guilt.'^e  ^^^  [^  j^as  been  held  that  the  court  has  no 
authority  on  trial  for  homicide  to  require  the  jury  to  render  a  verdict 
for  any  particular  degree  of  the  crime.'"  For  it  is  for  the  jury  to 
find  from  all  the  evidence  whether  a  killing  is  murder;  and,  if  so, 
whether  in  the  first  or  second  degree."^  And  so  the  question  whether 
a  manslaughter  committed  by  the  accused  was  voluntary  or  invol- 
untary, is  one  of  fact  for  the  jury.'^'^  The  conclusiveness  of  circum- 
stantial evidence  to  establish  the  fact  of  the  death  of  the  person  al- 

"» State  v.  Harris,  46  N.  Car.  190.  So.  92;    State  v.  Cleveland,  58  Me. 

'=»Pfomer  v.   People,   4   Park.   Cr.  564;    Parrish  v.  State,  18  Neb.  405, 

Cas.   (N.  Y.)   558.  25  N.  W.  573;  State  v.  Gray,  19  Nev. 

'^"De  Arman  v.  State,  77  Ala.  10.  212;    8  Pac.  456;   People  v.  Conroy, 

"^  State  v.  Bradley,  34  S.  Car.  136,  97  N.  Y.  62;   State  v.  Lucas,  124  N. 

13  S.  E.  315.  Car.    825,    32    S.    E.    962;    State    v. 

"==  People  v.  McFadden,  65  Cal.  445,  Grant,  7  Ore.  414;  Commonwealth  v. 

4   Pac.  421.  Sheets,  197  Pa.  St.  69,  46  Atl.  753; 

"^  State  V.  Angel,  7   Ired.  L.    (N.  State  v.  Boyce,  24  Wash.  514,  64  Pac. 

Car.)  27.  719;   State  v.  Welch,  36  W.  Va.  690, 

'"*  State  V.  Chee  Gong,  17  Ore.  635,  15  S.  E.  419. 

21  Pac.  882.  ""People  v.  Martinez,  66  Cal.  278, 

"'  State  v.  Moran,  7  Clarke  (Iowa)  5  Pac.  261. 

236;    Gafford    v.    State,    125    Ala.    1,  ""  Adams  v.  State,  29  Ohio  St.  412; 

20  So.  406;  Washington  v.  State,  125  see  also.  State  v.  Gadberry,  117  N. 

Ala.    40,    28    So.    78;    Carpenter    v.  Car.  811,  23  S.  E.  477. 

State,   58  Ark.   233;    24   S.  W.   247;  ^"*  State  v.  Carr,  53  Vt.  37. 

Marshall  v.   State,  32   Fla.  462;    14  '^  Bruner  v.  State,  58  Ind.  159. 


§  3025.]  HOMICIDE.  310 

leged  to  have  been  murdered  is  solely  for  the  jury.^*°  And  whether 
an  officer  is  guilty  of  criminal  negligence  in  shooting  one  whom  he  is 
attempting  to  arrest,  and  who  he  has  reason  to  believe  has  committed 
a  felony,  has  been  held  to  be  a  question  for  the  jury."^  So,  what 
constitutes  negligence  on  the  part  of  an  engineer  of  a  steamboat  in 
case  of  an  explosion  resulting  in  loss  of  life  has  been  held  to  be  a 
question  for  the  jury."^  It  is  also  held  that  an  expert  may  not  tes- 
tify that  the  deceased  would,  after  receiving  a  fatal  blow,  have  suffi- 
cient strength  to  inflict  a  blow  with  the  effect  specified  as  this  is  a 
question  for  the  jury;^*^  and  that  when  death  does  not  result  from 
the  unlawful  use  of  a  deadly  weapon,  intention  to  kill  is  not  a  matter 
of  legal  presumption,  but  is  a  question  for  the  jury.^**  So,  it  has 
been  held  that  the  question  how  much  less  weight  a  threat  made  by 
an  excited  man  is  entitled  to  than  one  made  by  a  cool  man  is  not  a 
subject  for  a  charge  by  the  court,  but  a  question  for  the  jury.^^^  But 
it  has  been  said  that  murder  is  a  conclusion  of  law  drawn  from  cer- 
tain facts,^*^  and  that  what  facts  would  be  sufficient  to  justify  or  ex- 
cuse a  killing  is  a  question  of  law.^*'^  So,  it  has  been  held  that 
whether  certain  facts  would  amount  to  a  sufficient  provocation  to  re- 
duce the  crime  of  killing  from  murder  to  manslaughter  is  also  a  ques- 
tion of  law.^^^  That  is,  what,  as  a  matter  of  law,  is  a  sufficient  provo- 
cation to  make  what  would  otherwise  be  murder  a  less  offense,  is  a 
question  of  law,^*®  for,  as  above  stated,  the  sufficiency  of  provocation 
to  excuse  or  extenuate  murder  is  a  question  of  law,^^"  But  it  is  for 
the  jury  to  determine  whether  the  necessary  facts  exist  in  the  par- 
ticular case,  and  in  most  instances,  where  the  law  prescribes  no  stand- 
ard, or  they  are  judges  of  the  law  as  well  as  the  facts,  the  whole  ques- 
tion is  for  the  jury. 

§  3025.     Evidence  as  to  the  physical  condition  and  the  body. — The 

physical  condition  of  the  deceased  prior  to,  or  at  the  instant  of  his 

i«  Johnson   v.    Commonwealth,    81  i"  Gallery  v.  State,  92  Ga.  463,  17 

Ky.  325.  S.  E.  863. 

^"People  V.   Kilvington.    104    Cal.  "' McPherson  v.  State,  22  Ga.  478. 

86,  37  Pac.  799,  43  Am.  St.  73.  "'=  People    v.    Aro,    6    Cal.    207,    65 

"-United  States  v.  Taylor,  5  Mc-  Am.  Dec.  503. 

Lean  (U.  S.)  242.  "^Gladden  v.  State,  12  Fla.  562. 

>"  People  v.  Rector,  19  Wend.   (N.  ^^^  State  v.  Craton,  6  Ired.  L.    (N. 

Y.)  569;  citing.  Self  ridge's  Trial,  23  Car.)    164. 

Ed.,  1806,  pp.  60,  61.  ""  State  v.  Dunn,  18  Mo.  419. 

I''"  State  V.  Jones,  20  Mo.  58. 


311  MOTIVE.  [§  3026. 

death  may  be  shown,^^^'  in  a  proper  case.  And  evidence  of  the 
condition  of  the  body  of  the  deceased  when  found,  and  as  to  the  num- 
ber and  character  of  his  wounds,  is  admissible.^^-  So,  a  non-expert 
witness  may  testify  as  to  the  wounds  he  saw  on  the  body.^^^  It  has 
been  held  that  the  prosecution  may  prove  statements  made  by  the 
deceased  as  to  his  physical  peculiarities  in  a  proper  case.  Thus,  a 
statement  by  the  deceased  that  he  had  a  peculiar  tooth  in  his  mouth 
has  been  held  admissible. ^^*  So,  as  the  identification  of  the  body  of 
the  deceased  may  often  be  accomplished  by  means  of  the  testimony 
of  a  witness  familiar  with  the  teeth  of  the  deceased,  such  evidence 
is  held  admissible.^^^  And  after  witnesses  have  testified  as  to  the 
teeth,  the  jury  may  then  determine  as  an  inference  from  the  points 
of  similarity,  if  any,  the  identity  of  the  remains  with  the  person 
whose  death  is  under  consideration.^^®  It  is  also  held  the  state  may 
prove  the  declarations  of  the  deceased  as  to  his  physical  condition 
made  to  a  physician  or  to  a  non-professional  person.^^^  And  that  a 
physician  may  give  an  opinion  of  a  person's  sex  based  upon  his  ex- 
amination of  a  skeleton. ^^^ 

§■  3026.  Evidence  as  to  motiv«. — Proof  of  a  motive  for  the  crime 
is  not  indispensable  where  the  defendant's  guilt  is  otherwise  estab- 
lished.^^* Proper  evidence  as  to  motive,  however,  is  usually  admis- 
sible, since  it  has  an  important  bearing  upon  the  probability  of  the 
guilt  of  the  accused.  ^^'^  But  in  a  prosecution  for  homicide,  where  self- 

^51  State  V.  Baldwin,  36  Kans.  1,  12  Cush.   (Mass.)   295;  Rehfuss  Dental 

Pac.  318;   Phillips  v.  State,  68  Ala.  Jurisprudence,  §  9,  17-32. 

469.  "'  State  v.  Moxley,  102  Mo.  374,  14 

»« Commonwealth  v.   Holmes,  157  S.  W.  969,  15   S.  W.  556;    State  v. 

Mass.   233,  32   N.   E.   6,   34  Am.   St.  Fournier,  68  Vt.  262,  35  Atl.  178. 

270;    McConnell    v.    State,    22    Tex.  1=^*  Wilson  v.  State.  41  Tex.  320. 

App.   354.   3   S.  W.   699,  58   Am.   R.  "' Cupps   v.    SUte,    120    Wis.    504, 

647;  Terry  v.  State,  118  Ala.  79,  23  97  N.  W.  210,  98  N.  W.  546,  102  Am. 

So.  776;  Davidson  v.  State,  135  Ind.  St.  996,  and  note;    State  v.  Adams, 

254,  34  N.  E.  972;  People  v.  Wright,  (N.  Car.)   50  S.  E.  765;   Johnson  v. 

89  Mich.  70,  50  N.  W.  792;   Billings  United  States,  157  U.  S.  320,  15  Sup. 

V.  State,  52  Ark.  303,  12  S.  W.  574.  Ct.  614;  People  v.  Johnson,  139  N.  Y. 

1"  Smith   v.    State,    43    Tex.    643;  358,  34  N.  E.  920;  Commonwealth  v. 

Everett  v.  State,  62  Ga.  65;   Batten  Hudson,  97  Mass.  565;    State  v.  Da- 

V.  State,  80  Ind.  394.  vid,  131  Mo.  380,  33  S.  W.  28;  Horns- 

^*  Edmonds  v.  State,  34  Ark.  720.  by  v.  State.  94  Ala.  55,  10  So.  522; 

"'Udderzook     v.     Commonwealth,  Powell  v.  State,  67  Miss.  119,  6  So. 

76  Pa.  St.  340;  see,  Rehfuss  Dental  646. 

Jurisprudence,  §  9,  17-32.  >"»  Kelsoe    v.    State,    47    Ala.    573; 

i5»  Commonwealth    v.    Webster,    5  People   v.    Ah    Fung,    17    Cal.    377; 


§  3026.] 


HOMICIDE. 


31^ 


defense  was  relied  on  by  the  defendant,  evidence  tending  to  show  im- 
proper relations  between  defendant  and  the  divorced  wife  of  the  de- 
ceased was  held  inadmissible  to  show  motive.^®^  And  ordinarily,  at 
least,  the  facts,  which  it  is  sought  to  introduce  as  to  motive,  must 
have  been  known  to  the  accused  at  the  time  of  the  killing.^^^  The 
prosecution,  as  a  general  rule,  has  the  right  to  offer  any  evidence  tend- 
ing to  prove  a  motive  for  the  commission  of  the  crime.^*'^  And  testi- 
mony as  to  the  finding  in  the  defendant's  trunk  of  certain  personal 
property  belonging  to  deceased  has  been  held  competent  as  tending  to 
show  motive,  and  form  links  in  the  chain  of  evidence.^*'*  Evidence 
tending  to  show  defendant's  feeling  toward  the  person  killed  is  ad- 
missible to  show  a  motive  for  the  crime.'''^  Evidence  that  the  accused 
had  quarreled  with  decedent's  wife  shortly  before  the  commission  of 


State  V.  West,  Houst.  Cr.  Cas.  (Del.) 
371,  382;  Stafford  v.  State,  55  Ga. 
591;  Farris  v.  People,  129  111.  521, 
21  N.  j:.  821,  16  Am.  St.  283;  Jones 
V.  State,  64  Ind.  473;  State  v.  Sey- 
mour, 94  Iowa  699,  63  N.  W.  661; 
Jackson  v.  Commonwealth,  100  Ky. 
239,  38  S.  W.  422,  66  Am.  St.  336; 
State  V.  Edwards,  34  La.  Ann.  1012; 
McBride  v.  Commonwealth,  95  Va. 
818,  30  S.  E.  454;  State  v.  Tettaton, 
159  Mo.  354,  60  S.  W.  743;  People  v. 
Benham,  160  N.  Y.  402,  55  N.  E.  11. 

^"  People  v.  Wright,  144  Cal.  161, 
77  Pac.  877. 

^'^^Gillum  v.  State,  62  Miss.  547; 
Son  V.  Territory,  5  Okla.  526,  49  Pac. 
923;  People  v.  Morgan,  124  Mich. 
527,  83  N.  W.  275;  Cockerell  v.  State, 
32  Tex.  Cr.  App.  585,  25  S.  W.  421. 

1"^  State  V.  Larkin,  11  Nev.  314; 
see  also,  note  161  of  this  chap. 

J«  Morris  v.  State,  30  Tex.  App.  95, 
16  S.  W.  757;  in  a  prosecution  for 
murder,  in  which  it  appeared  that 
defendent  and  deceased  had,  on  the 
day  before  the  killing,  been  gam- 
bling, in  the  course  of  which  de- 
ceased had  obtained  defendant's 
watch,  evidence  that,  on  the  evening 
before  the  killing,  deceased  wore  a 
cord  with  the  defendant's  watch  at- 


tached thereto,  and  that,  when  the 
body  was  found,  the  cord  was  on  it, 
but  the  watch  was  gone,  was  prop- 
erly admitted  to  show  motive: 
Bowen  v.  State,  140  Ala.  65,  37  So. 
233. 

^»  People  V.  Kern,  61  Cal.  244; 
People  V.  Barthleman,  120  Cal.  7,  52 
Pac.  112;  State  v.  Reed,  50  La.  Ann. 
990,  24  So.  131;  so,  it  has  been  held 
that  "evidence  that  during  the  after- 
noon preceding  the  evening  of  the 
killing  a  third  person  had  told  one 
of  the  defendants  of  a  statement 
which  deceased  had  made  concern- 
ing him,  and  that  this  defendant 
had  then  said  that  he  would  kill  de- 
ceased, was,  when  restricted  in  its 
application  to  the  defendant  con- 
cerned, properly  admitted  to  show 
animus.";  Tipton  v.  State,  140  Ala. 
39,  37  So.  231.  But  evidence  of  hos- 
tile feelings  on  the  part  of  defend- 
ant toward  a  class  of  persons  whom 
he  deemed  "spotters,"  was  held  not 
to  be  admissible  where  the  only  evi- 
dence of  the  cause  of  his  difficulty 
with  the  deceased  was  that  the  lat- 
ter was  a  "prohibitionist."  Harri- 
son V.  State,  (Tex.  Cr.  App.)  83  S. 
W.  699. 


313  MOTIVE.  [§  3026. 

the  murder  has  been  held  admissible  to  show  motive.^ ®^  Where  one 
is  on  trial  for  the  murder  of  his  wife,  evidence  of  his  recent  acts  of 
personal  violence  is  admissible.^ ®^  So,  also,  are  e\adence  of  ill  treat- 
ment and  previous  assaults  by  the  husband  on  the  wife,^®^  and  for  the 
same  purpose  evidence  that  a  wife  had  applied  for  a  divorce  has  been 
held  admissible  to  show  motive.^ ^^  So,  where  a  murder  is  committed 
in  an  attempt  to  conceal  stolen  goods,  evidence  tending  to  connect 
the  murder  with  the  previous  crime  of  burglary  has  been  held  ad- 
missible to  show  motive.""  And  it  has  been  held  that  statements  of 
the  deceased  before  the  killing,  implicating  defendant  in  a  larceny, 
may  be  admitted  to  show  the  motive  of  the  homicide ;  but  his  guilt  or 
innocence  thereof  cannot  be  entered  into."'  And  evidence  that  the 
accused  had  stolen  money  from  deceased  is  admissible  as  showing  mo- 
tive where  the  deceased  accused  defendant  of  the  stealing."-  So,  on 
a  prosecution  for  murder,  evidence  of  an  indictment  procured  by  de- 
ceased against  the  accused  for  a  prior  larceny  is  admissible  to  show 
motive."^  So,  evidence  of  a  desire  to  be  rid  of  one's  husband  or  wife 
and  infatuation  or  unlawful  relations  with  another  is  admissible  for 
the  purpose  of  proving  a  motive  for  the  homicide."^  Thus,  where  the 
accused  is  charged  with  killing  his  wife,  the  state  may  prove  an  im- 
proper intimacy  between  the  accused  and  a  woman  other  than  his 
wife."^  And  letters  from  defendant  to  two  other  women,  showing 
his  relations  to  them,  he  being  engaged  to  be  married  to  one,  and  in- 
timate with  the  other,  who  was  a  prostitute,  have  been  held  admis- 
sible to  show  motive  for  desiring  to  be  rid  of  his  wife."^    So  infatua- 

'"« Gravely  v.   State,  45   Neb.   878,  i™  McConkey     v.     Commonwealth, 

64  N.  W.  452.  101  Pa.  St.  416. 

^«^  Carroll  v.   State,   45   Ark.   539;  I'MVllliams  v.  State,  69  Ga.  11. 

see  also.  State  v.  Seymour,  94  Iowa  ^'-  Roberts   v.    Commonwealth,    10 

699,  63  N.  W.  661;  Painter  v.  People,  Ky.  L.  R.  433,  8  S.  W.  270. 

147  111.  444,  35  N.  E.  64;   People  v.  ^'^^  Kiinde  v.  State,  22  Tex.  App.  65, 

Decker,  157  N.  Y.  186,  51  N.  E.  1018;  3    S.    W.    325;    Gillum   v.    State,    62 

State  V.  Bradley,  67  Vt.  465,  32  Atl.  Miss.  547;    Turner  v.   State.   70  Ga. 

238.  765;  see  also.  Smith  v.  State,  (Fla.) 

i««  State  V.  O'Neil,  51  Kans.  651,  33  37  So.  573. 

Pac.  287,  24  L.  R.  A.  555;   see  also,  "*  Hall  v.  State,  40  Ala.  698;  Wil- 

Phillips  V.  State,  62  Ark.  119,  34  S.  kerson  v.  State,  31  Tex.  Cr.  App.  86, 

W.  539;  Thiede  v.  Territory,  159  U.  19  S.  W.  903. 

S.  510.  16  Sup.  Ct.  62,  and  authori-  ^"^  Hall  v.  State,  40  Ala.  698;  John- 
ties  cited  in  last  note  supra.  son  v.  State.  94  Ala.  35,  10  So.  667. 

"'■'■'  Pinckord  v.  State,  13  Tex.  App.  ^^  O'Brien    v.    Commonwealth,    89 

468.  Ky.  354,  12  S.  W.  471. 


§   3026.]  HOMICIDE.  314 

tions  or  unlawful  relations  with  the  husband  or  wife  of  the  deceased 
is  admissible  to  prove  motive.  Thus,  evidence  of  the  illicit  relation 
between  defendant  and  the  wife  of  the  deceased  is  admissible."^  But 
evidence  that  five  days  after  the  murder  the  wife  of  the  deceased 
committed  adultery  with  the  defendant  is  inadmissible  to  show  mo- 
tive,"^ The  motive  may  be  shown  to  have  been  pecuniary  gain. 
Thus,  the  state  may  show,  in  a  proper  case,  that  shortly  before  his 
death  the  deceased  was  in  possession  of  a  large  amount  of  money  or 
other  property,  and  that  this  fact  was  known  to  the  accused."^  So, 
a  statement  to  a  fellow  prisoner  by  one  accused  of  murder  that  he 
knew  that  deceased  had  a  large  sum  of  money  in  a  belt  on  his  person 
has  been  held  admissible  to  show  motive.^*"  Evidence  of  the  receipt 
of  a  considerable  sum  of  money  by  the  deceased  a  few  months  pre- 
vious to  the  murder  when  the  defendant  is  properly  connected  with 
the  matter,  is  competent  for  the  purpose  of  showing  a  motive  for  the 
commission  of  the  murder.^*^  And  evidence  that  soon  after  the  mur- 
der, the  prisoner  had  much  more  money  in  his  possession  than  he  had 
previously  has  been  held  competent  as  tending  to  show  motive.^*^ 
So,  it  has  been  held  that  the  state  of  defendant's  bank  account,  and 
applications  to  others  for  loans,  are  admissible  to  show  his  strait- 
ened financial  circumstances  as  a  motive  for  murder.^^^  Evidence 
may  be  introduced  to  show  that  the  motive  was  for  the  collection  of 
life  insurance  on  the  deceased.^^*  For  this  purpose  evidence  of  the 
existence  of  a  life  insurance  policy  payable  to  the  accused  is  compe- 
tent.^*^    And  evidence  showing  that  the  defendant  is  the  heir  at 

^"Pate  V.  State,  94  Ala.  14,  10  So.  "^Kennedy  v.  People,  39  N.  Y.  245. 

665;  Johnson  v.  State,  24  Fla.  162,  4  '»=  State  v.  Wintzingerode,  9  Ore. 

So.  535.  153. 

m  Traverse  v.  State,  61  Wis.  144,  ^'^  Commonwealth   v.   Twitchell,   1 

20  N.  W.  724.  Brewst.  (Pa.)  551. 

"'  State  v.  Donnelly,  130  Mo.  642,  '"**  State  v.   Rainsbarger,   74   Iowa 

32  S.  W.  1124;  Ettinger  v.  Common-  196,  37  N.  W.  153;  Commonwealth  v. 

wealth,   98    Pa.    St.    338;    Lancaster  Robinson,  146   Mass.   571,   16   N.   B. 

V.  State,  9  Tex.  App.  393;  Davidson  452. 

V.  State,  135  Ind.  254,  34  N.  E.  972;  ^^^  State   v.   Rainsbarger,    71    Iowa 

State  V.  Crowley,  33  La.  Ann.  782;  746,  31  N.  W.  865;  Commonwealth  v. 

State  v.  Lucey,  24  Mont.  295,  61  Pac.  Robinson,   146    Mass.   571,  16   N.   E. 

994;    Kennedy   v.   People,   39    N.    Y.  452;    State  v.   Shackelford,   148   Mo. 

245;  see  also.  Dean  v.  State,  (Miss.)  493,  50  S.  W.  105;  Commonwealth  v. 

37  So.  501.  Clemmer,  190  Pa.  St.  202,  42  Atl.  675. 

^'*°  State   V.   Jackson,   95    Mo.    623, 
8  S.  W.  749. 


315  MEANS  USED CAUSE  OF  DEATH.  [§    3027. 

law,  legatee,  or  devisee  of  the  deceased  may  be  competent.^ '*^  The 
motive  may  have  been  to  remove  an  obstacle  to  improper  relations, 
and  so  the  state  may  show  that  the  deceased  interfered  with  or  pre- 
vented the  defendant's  establishing  or  maintaining  improper  rela- 
tions with  some  person  of  the  opposite  sex.^*^  It  has  also  been  held 
competent  to  bring  out  any  facts  tending  to  show  that  the  defendant 
was  jealous  of  the  deceased.^ ^^  The  suppression  of  evidence  may  also 
be  shown  to  be  the  motive."^  But  it  is  held  that  the  mere  fact  that 
some  one  else  might  have  had  a  motive  to  commit  the  crime  is  not 
competent  evidence,  since  there  must  be  some  other  facts  showing 
proximity  and  opportunity  in  addition  to  the  motive.^^** 

§  3027.  Means  used  and  cause  of  death. — Evidence  is  admissible 
in  a  murder  case  to  show  the  condition  of  deceased's  weapon  when 
found  after  the  homicide.^"  And  the  state  may  show  the  condition 
of  the  pistol,  with  which  the  killing  was  done,  on  the  morning  after 
the  homicide.^^-  So,  on  the  other  hand,  testimony  that  deceased's 
pistol  had  only  two  loads  in  it  is  admissible  in  rebuttal,  as  tending 
to  overthrow  the  theory  sought  to  be  established  by  defendant  that 
deceased  first  shot  at  accused.^^^*  Evidence  in  relation  to  the  ex- 
amination of  guns  in  the  neighborhood,  to  ascertain  whether  any  of 
them  carried  a  ball  of  the  size  of  the  one  found  in  the  body  of  the 
murdered  man,  has  likewise  been  held  admissible.^^^  Testimony  as 
to  the  character  of  the  wound  on  the  body  of  deceased  is  admis- 
sible.^^*    A  physician  may  testify  that  an  injury  discovered  upon  a 

""People  v.  Buchanan,  145  N.  Y.  1,  2  Ark.  229,  35  Am.  Dec.  54;   Hodge 

39  N.  E.  846.  v.   State.  97  Ala.  37,  12  So.  164,  38 

'■*•  State  V.  Reed,  53  Kans.  767,  37  Am.  St.  145. 

Pac.  174,  42   Am.  St.  322;    State  v.  »» State  v.  Perry,  51  La.  Ann.  1074, 

Abbatto,  64  N.  J.   L.   658;    State  v.  25  So.  944;  Ogden  v.  State,  (Tex.  Cr. 

John,  8   Ired.  L.    (N.  Car.)    330,  49  App.)  58  S.  W.  1018. 

Am.  Dec.  396;  State  v.  Chase,  68  Vt.  ^"  State  v.  Chevallier,  36  La.  Ann. 

405,  35  Atl.  336.  81. 

^'^  State  V.  Reed,  50  La.  Ann.  990,  "=  State  v.  Pritchett,  106  N.  Car. 

24  So.  131;   People  v.  Place,  157  N.  667,  11  S.  E.  357. 

Y.  584,  52  N.  E.  576;  State  v.  Larkin,  "=*  State  v.  Cooper,  83  Mo.  698. 

11  Nev.  314.  "=Dean     v.     Commonwealth,     32 

1^' State  v.  Patza,  3  La.  Ann.  512;  Gratt.  (Va.)  912. 

State  v.  Welch,  22  Mont.  92,  55  Pac.  '"^  People  v.  Wright,   89  Mich.   70, 

927;    State  v.   Ingram,  23  Ore.   434,  50  N.  W.  792;    O'Mara  v.  Common- 

31  ipac.   1049;    Hudson  v.    State,  28  wealth,    75    Pa.    St.    424;    Batten   v. 

Tex.  App.  323.  13  S.  W.  388;  Turner  State,  80  Ind.  394;  Everett  v.  State, 

V.  State,  70  Ga.  765;  Dunn  v.  State,  62  Ga.  65;    Smith  v.  State,  43  Tex. 


§  3028.]  HOMICIDE.  31G 

dead  body  was  inflicted  before  death. "^  And  a  physician  may  testify 
as  to  the  cause  of  the  death  in  his  opinion.^^®  So  a  surgeon  may  give 
opinion  evidence  as  to  the  probable  cause  of  the  death.^^^  And  a 
surgeon  may  testify  in  his  opinion  that  a  death  was  not  suicidal.^®''* 
So  it  has  been  held  that  a  person  familiar  by  experience  with  the  ap- 
pearance or  treatment  of  wounds  may  give  an  opinion  as  to  the  man- 
ner in  which  a  mortal  wound  was  probably  inflicted.^®^  So,  also, 
as  to  the  degree  of  force  employed/ ^^  and  also  as  to  the  direc- 
tion of  a  blow.^*"'  Evidence  of  the  health  of  the  deceased  im- 
mediately before  the  infliction  of  the  wound  has  been  held  ad- 
missible as  showing  whether  death  was  caused  by  the  wound.^"^ 
It  has  also  been  held  competent  for  a  witness  to  state  how  deceased 
acted  at  the  time  he  was  said  to  be  poisoned.^"-  And  it  has  been  held 
not  necessary  to  the  admission  of  testimony  regarding  the  analysis 
of  the  stomach  of  deceased  that  the  stomach  should  be  so  preserved 
as  to  preclude  the  possibility  of  its  being  tampered  with.^"^  Nor  is 
it  necessary  that  an  analysis  or  microscopical  examination  should  be 
made  in  order  for  one  to  testify  as  to  blood  stain.^°* 

§  3028.  Articles  in  evidence. — When  properly  identified  the  fol- 
lowing articles  have  been  held  admissible  in  evidence:  bullets  taken 
from  the  body  of  the  deceased,  or  from  trees  or  walls  near  the  scene 

643;  Basye  v.  State,  45  Neb.  261,  63  erful  blow  it  may  be  shown  that  the 

N.  W.  811.  defendant   is   strong  and   powerful. 

^'^  State  v.  Clark,  15  S.  Car.  403;  Thiede  v.  Utah  Ter.,  159  U.  S.  510, 

State  v.  Harris,  63  N.  Car.  1.  16  Sup.  Ct.  62. 

^'"' State  V.  Jones,  68  N.  Car.  443;         ^''»  People  v.  Fish,  125  N.  Y.  136, 

State  V.  Merriman,  34  S.  Car.  16,  12  26  N.  E.  319;   Thiede  v.  Utah  Ter., 

S.  E.  619.  159  U.  S.  510,  16  Sup.  Ct.  62. 

'"'  Commonwealth     v.     Thompson,         ^^  Commonwealth     v.     Sturtivant, 

159  Mass.  50,  33  N.  E.  1111;   People  117  Mass.  122,  19  Am.  R.  401;   Ken- 

v.  Barker,   60   Mich.   277,  27   N.  W.  nedy  v.  People,  39  N.  Y.  245;  Simon 

539,  1  Am.  St.  501;   Boyle  v.  State,  v.  State,  108  Ala.  27,  18  So.  731. 
61  Wis.  440,  21  N.  W.  289.  ^^  Phillips  v.  State,  68  Ala.  469. 

"■*  Everett  v.  State,  62  Ga.  65.  '"'-  State  v.  David,  131  Mo.  380,  33 

"'  Lemons  v.  State,  97  Tenn.  560,  S.  W.  28. 
37  S.  W.  552;  Rash  v.  State,  61  Ala.         ^^^  State  v.  Cook,  17  Kans.  392. 
89;    People  v.   Fish,   125   N.  Y.   136,         =°^  People  v.  Gonzales,  35  N.  Y.  49; 

26   N.    E.    319;    State   v.    Asbell,    57  State  v.  Welch,  36  W.  Va.  690,  15  S. 

Kans.  398,  46  Pac.  770;  Williams  v.  E.    419;    People   v.    Smith,   112    Cal. 

State,  64  Md.  384,  1  Atl.  887;   Hopt  333,  44  Pac.  663;    State  v.  Bradley, 

V.  Utah,  120  U.  S.  430,  7  Sup.  Ct.  614.  67  Vt.  465,  32  Atl.  238. 
And  if  shown  to  be  caused  by  a  pow- 


:3ir 


ARTICLES  IX  EVIDENCE. 


[§    3028. 


of  the  killing  ;205  parts  of  the  hody  of  the  deceased,  such  as  the  ver- 
tebra? and  ribs;2'>6  a  door  of  the  room  in  which  the  killing  occurred, 
for  the  purpose  of  showing  the  location  of  bullets.^"  Articles  found 
on  the  body  of  the  deceased  f'^^  articles  found  at  the  place  of  the  kill- 
ing, which  are  shown  to  be  the  property  of  the  accused  ;2"*  and  the 
weapon  which  was  used  in  committing  the  homicide.- ^<>  And  so, 
also,  clothing  identified  as  having  been  worn  either  by  the  deceased-^ ^ 
or  by  the  defendant-^^  at  the  time  of  the  homicide.  So,  in  a  recent 
case  where  it  appeared  that  deceased  and  another,  as  oflEicers,  were  at- 
tempting to  arrest  the  defendant  after  night,  and  that  he  shot  through 
a  tin  lantern  held  by  one  of  the  officers,  hitting  the  deceased  and 
killing  him,  it  was  held  proper  to  admit  in  evidence  the  bullet  taken 
from  the  body  of  the  deceased,  accompanied  by  a  small  piece  of  tin.-^^ 
A  Avitness  familiar  with  firearms  may  testify  that  a  gun  or  pistol  be- 
longing to  the  defendant  had  or  had  not  been  recently  used.^"  But 
it  has  been  held  improper  to  allow  experiments  with  weapons  in  the 
presence  of  the  jury.-^^     And  testimony  of  witnesses  as  to  certain 


^'^  Crawford  v.  State,  112  Ala.  1, 
21  So.  214;  Williams  v.  Common- 
wealth, 85  Va.  607,  8  S.  E.  470;  State 
V.  Tippet,  94  Iowa  646,  63  N.  W.  445. 

-""  Turner  v.  State,  89  Tenn.  547. 

=°' State  V.  Goddard,  146  Mo.  177, 
48  S.  W.  82. 

=«  People  V.  Irwin,  77  Cal.  494,  20 
Pac.  56;  King  v.  Commonwealth,  35 
Pa.  L.  J.  127. 

=»"  Thornton  v.  State,  113  Ala.  43, 
21  So.  356,  59  Am.  St.  97;  Ruloff  v. 
People,  45  N.  Y.  213;  Williams  v. 
Commonwealth,  85  Va.  607,  8  S.  E. 
470. 

^"Ezell  v.  State,  103  Ala.  8,  15  So. 
818;  People  v.  Cox,  76  Cal.  281,  18 
Pac.  332;  Wynne  v.  State,  56  Ga. 
113;  Siberry  v.  State,  133  Ind.  677, 
33  N.  E.  681;  State  v.  Jones,  89  Iowa 
182,  56  N.  W.  427;  State  v.  Gushing, 

17  Wash.  544,  45  Pac.  145,  53  Am. 
St.  883;  State  v.  Roberts.  63  Vt.  139, 
21  Atl.  424;  Rodiquez  v.  State,  32 
Tex.  Cr.  App.  259,  22  S.  W.  978. 

="  Burton   v.   State,    107   Ala.    108, 

18  So.  284;   People  v.  Durrant,  116 


Cal.  179,  48  Pac.  75;  Davidson  v. 
State,  135  Ind.  254,  34  N.  E.  972; 
State  V.  Winter,  72  Iowa  627,  34  N. 
W.  475;  People  v.  Wright,  89  Mich. 
70,  50  N.  W.  792;  State  v.  Symmes, 
40  S.  Car.  383,  19  S.  E.  16;  Head  v. 
State,  40  Tex.  Cr.  App.  265,  50  S.  W. 
552;  Venters  v.  State,  (Tex.  Cr. 
App.)  83  S.  W.  832;  State  v.  Gush- 
ing, 14  Wash.  527,  45  Pac.  145,  53 
Am.  St.  883. 

-'=  State  v.  Stair,  87  Mo.  268,  56 
Am.  R.  449;  People  v.  Neufeld,  165 
N.  Y.  43,  58  N.  E.  786;  State  v.  Ba- 
ker, 33  W.  Va.  319,  10  S.  E.  639;  see 
generally.  Vol.  II,  §  1223. 

='■■  People  V.  Morales,  143  Cal.  555. 
77  Pac.  470. 

-"Meyers  v.  State,  14  Tex.  App. 
35;  People  v.  DriscoU,  107  N.  Y.  414, 
14  N.  E.  305;  see  also,  as  to  opinions 
as  to  poison  and  blood  stains  and 
cause  of  death  generally,  Vol.  II, 
§§  1087, 1090. 

-'"  United  States  v.  Ball,  163  U.  S. 
662.  16  Sup.  Ct.  1192;  Polin  v.  State, 
14  Neb.  540,  16  N.  W.  898. 


§  3029.]  HOMICIDE.  318 

holes  in  the  clothing  of  deceased  is  not  incompetent  on  the  ground 
that  the  clothing  is  the  best  evidence.^^^ 

§  3029.  Attendant  circumstances — ^Res  gestae. — Evidence  of  the 
attendant  circumstances  is  admissible  in  so  far  at  least  as  they  are 
part  of  the  res  gestae,  and,  sometimes,  such  evidence  has  been  per- 
mitted to  take  a  very  wide  range.  It  is  held  to  be  competent  in  a  case 
of  homicide  to  put  in  evidence  the  conduct,  actions  and  general  be- 
havior of  the  accused  immediately  before  the  killing,  in  order  to  show 
that  he  was  armed  and  in  a  vicious  humor,  even  though  such  testi- 
mony discloses  another  offense.^^^  And  it  has  been  held  that  one  who 
met  the  accused  three-quarters  of  an  hour  after  a  murder,  may  testify 
that  he  appeared  excited.^^^  So  testimony  that  when  the  witness 
entered  the  defendant's  house,  soon  after  the  killing,  the  defendant 
was  perspiring  freely,  has  been  held  admissible.^^^  And  so  evidence 
is  admissible  that  when  deceased  was  killed  two  persons  ran  rapidly 
away  in  the  same  direction,  and  that  one  said,  as  they  ran  past  a  by- 
stander, "Will,  you  have  killed  him."^^"  It  has  been  held  that  evi- 
dence that  defendant,  immediately  after  the  crime  with  which  he  was 
charged,  shot  and  killed  another  person,  is  admissible  as  part  of  the 
res  gestae.-^^  So  evideijce  of  the  disturbances  prior  to  the  killing, 
and  out  of  which  it  resulted,  is  also  admissible.^^^  And  a  witness 
for  the  state  may  be  questioned  on  cross-examination  as  to  whether 
he  agreed  to  meet  the  deceased  at  a  certain  place  and  assist  him  in 
driving  the  accused  off  certain  land.--^  And  notes  that  passed  be- 
tween the  accused  and  the  deceased  on  the  day  of  the  homicide,  show- 
ing the  beginning  of  the  difficulty,  have  been  held  pertinent  and  ad- 
missible.-^'' But  the  facts  and  details  of  a  civil  suit  between  deceased 
and  other  parties  are  not  competent  evidence  on  a  trial  for  homi- 
cide.^^^  It  has  been  held  that  testimony  as  to  where  deceased  was 
supposed  to  have  been  killed  is  admissible  if  merely  for  the  purpose 

''"  Underwood    v.    Commonwealth,  -^  Wilkerson  v.  State,  31  Tex.  Cr. 

(Ky.)    84  S.  W.  310.  App.  86,  19  S.  W.  903. 

="Kernan  v.  State,  65  Md.  253,  4  -=  People  v.  Curtis,  52   Mich.   616, 

Atl.  124.  18  N.  W.  385. 

='*  Miller    v.    State,    18    Tex.    App.  ="  People  v.  Furtado,  57  Cal.  345. 

232.  "*Spivey  v.  State,  58  Miss.  858. 

"-'"  Prince  v.  State,  100  Ala.  144,  14  =-■'  State    v.    Brooks,    39    La.    Ann. 

So.  409,  46  Am.  St.  28.  817,  2  .So.  498. 

""  Briggs    v.     Commonwealth,     82 
Va.  554. 


319  ATTENDANT   CIRCUMSTANCES — DECLARATIONS.         [§   3030. 

of  locating  the  spot  as  a  foundation  for  further  examination.^e  rpj^^ 
state  may  also  show  as  a  part  of  the  res  gestae  that  deceased  on  the  day 
of  her  death,  was  on  her  way  to  a  neighbor's  house,  near  which  her 
body  was  found."^  Evidence  that  defendant's  hands  and  knife,  soon 
after  the  killing,  were  smeared  with  blood,  is  admissible,  without 
proof  of  a  chemical  analysis  of  the  substance  on  the  hands  and 
knife."^  The  condition  in  which  the  body  and  clothing  were  found 
is  admissible,  being  part  of  the  res  gestae.""  It  is  held  tliat  the  state 
may  show  the  condition  of  things  at  the  house  immediately  after 
deceased's  body  is  found.-^*'  And  evidence  that  the  witness,  soon  after 
the  shooting,  saw  blood  on  the  ground,  has  been  held  admissible  to 
identify  the  place  of  the  murder."^  But  evidence  that  the  accused 
repented  the  next  day  of  his  act  and  was  forgiven  by  the  deceased  is 
inadmissible.^^-  It  has  been  held,  however,  that  any  acts  showing  a 
desire  on  the  part  of  the  accused  to  hide  evidence  of  a  crime,  as  by 
washing  his  hands  or  clothing  to  remove  blood  stains,  or  by  hiding 
or  destroying  weapons,  or  his  attempts  to  escape  or  his  conduct  when 
charged  with  the  homicide  are  admissible  and  the  jury  may  properly 
infer  that  they  show  a  consciousness  of  his  own  guilt.'^ 


233 


§  3030.  Attendant  circumstances  —  Declarations.  —  Declarations 
forming  a  part  of  the  res  gestae  are  admissible.  Thus,  statements 
by  the  deceased  made  before  or  immediately  after  the  homicide,  but 
connected  with  and  explanatory  of  an  act  which  led  up  to  and  pre- 
pared for  it,  are  competent,  usually  for  the  purpose  of  showing  his 
mental  state  and  motives.-^*  So  they  may  be  admissible  to  show  where 
he  was  going  about  the  time  of  the  homicide  i^^^  and  also  to  identify 
the  defendant.-^*'     So,  where  the  day  before  deceased  was  killed  at  a 

"« People  v.  McDowell,  64  Cal.  467,  =^  Morris  v.  State,  30  Tex.  App.  95, 

3  Pac.  124.  16   S.   W.   757;    Batten  v.   State,   80 

-^  Tllley  V.  Commonwealth,  89  Va.  Ind.  394. 

136,  15  S.  E.  526.  ==^  Boyle    v.    State,    97    Ind.    322; 

"'Barbour   v.    Commonwealth,    80  Harris  v.   State,  96  Ala.  24,  11   So. 

Va.  287.  255;    State  v.  Harris,  63  N.  Car.  1; 

==»  People  V.  Majors,  65  Cal.  138,  3  Commonwealth   v.   Werntz,   161   Pa. 

Pac.  597,  52  Am.  R.  295.  St.  591,  29  Atl.  272;  People  v.  Hawes, 

=5°  Davidson  v.  State,  135  Ind.  254,  98   Cal.   648,   33   Pac.   791;    State   v. 

34  N.  E.  972.  Ridgely,  2  Har.  &  McH.   (Md.)   120, 

=«i  People  V.  Minisci,  12  N.  Y.  St.  1  Am.  Dec.  372. 

719.  ^'^  State  v.  Vincent,  24  Iowa  570. 

-■-  Murphy  v.  People,  9  Colo.  435,  "''  Cox  v.  State,  8  Tex.  App.  254. 
13  Pac.  528. 


§  3030.]  HOMICIDE.  320 

particular  place,  and  while  on  his  way  to  that  place,  he  stated  that  he 
was  going  there,  and  also  stated  his  object  in  going,  such  statements 
have  been  held  admissible  as  part  of  the  res  gestae.^^^  And  declara- 
tions of  the  deceased  made  just  before  starting  out,  of  his  object  and 
purpose  in  going  to  the  house  where  he  was  killed,  are  admissible  as 
part  of  the  res  gestae.^^^  Evidence  as  to  the  declarations  made  by  the 
accused  at  the  time  the  act  was  committed  is  admissible  as  part  of 
the  res  gestae.^^^  But  a  statement  made  by  the  deceased  fifteen  min- 
utes before  the  homicide  and  in  the  absence  of  defendant  as  to 
threats  made  by  defendant,  has  been  held  not  to  be  admissible  as 
part  of  the  res  gestae.-*"  It  has  been  held,  however,  that  declarations 
made  by  the  deceased  immediately  after  the  shooting  are  admissible 
as  part  of  the  res  gestae.  They  are  instinctive  words,  and  are  words 
of  narration.'*^  So  declarations  made  by  deceased  during  the  affray  in 
which  he  was  killed  are  admissible  as  part  of  the  res  gestae.^*-  But 
evidence  of  statements  by  deceased  as  to  who  inflicted  the  wound 
is  not  admissible,  unless  it  forms  a  part  of  the  res  gestae,  or  is  ad- 
missible as  a  dying  declaration.-*^  So,  a  witness  will  not  be  allowed 
to  testify  as  to  declarations  of  deceased  made  some  time  after  the  fatal 
blow  is  given,  unless  the  circumstances  are  such  as  to  admit  them 
as  dying  declarations.-*'*  So,  the  declarations  of  the  defendant,  di- 
rectly after  the  shooting,  as  to  why  he  had  shot  deceased,  have  been 
held  not  part  of  the  res  gestae  and  not  admissible.-*"  And  statements 
made  by  the  accused  to  third  persons  after  the  homicide  had  been  com- 
mitted are  not  admissible  in  evidence  of  his  own  behalf.^*^  And 
declarations  of  the  accused  made  an  hour  after  the  time,  and  a  mile 
from  the  place,  of  the  homicide,  are  not  admissible  as  part  of  the 
res  gestae.^*'^  Neither  are  statements  of  the  accused  made  subsequent 
to  the  killing,  after  walking  three  or  four  miles,  admissible  as  part 
of  the  res  gestae.^* ^    And  declarations  of  a  witness  made  half  an  hour 

"'Kirby  v.  State,  7  Yerg.  (Tenn.)  ="  Lambright  v.  State,  34  Fla.  564, 

259.  16  So.  582. 

"*  Harris  v.  State,  96  Ala.  24,   11  "'-*  State  v.  Wyse,  32  S.  Car.  45,  10 

So.  255.  S.  E.  612. 

=^'' State  v.  Walker,  77  Me.  488,  1  =^^King  v.   State,   65   Miss.   576,   5 

Atl.  357.  So.  97,  7  Am.  St.  681. 

="  Montag  v.  People,  141  111.  75,  30  ""  State  v.  Talbert,  41  S.  Car.  526, 

N.  E.  337.  19  S.  E.  852. 

**^  State    V.    Euzebe,    42    La.    Ann.  ^"  State   v.   Johnson,   35   La.   Ann. 

727,  7  So.  784.  968. 

'"  State  v.  Henderson,  24  Ore.  100,  -'^  People  v.  Callaghan,  4  Utah  49, 

32  Pac.  1030.  6  Pac.  49. 


321  DYIXG  DECLARATIONS.  [§  3031. 

before  the  commission  of  the  crime,  are  not  a  part  of  the  res  gestae, 
unless  they  are  part  of  one  continuous  quarrel,  culminating  in  the 
crime.^'"'  And  threats  of  the  deceased  towards  the  accused,  made 
after  the  fatal  wound,  constitute  no  part  of  the  res  gestae.^^**  But 
some  jurisdictions  hold  that  declarations  made  by  the  deceased  im- 
mediately after  he  was  shot,  although  in  the  absence  of  the  defendant, 
are  admissil)le  as  part  of  the  res  gestae.-^^  Thus,  declarations  of 
the  deceased  that  accused  shot  him,  made  fifteen  or  twenty  minutes 
after  the  shooting,  and  as  soon  as  the  accused  could  speak,  are  ad- 
missible as  part  of  the  res  gestae.^^^  But  declarations  of  the  deceased's 
wife,  who  witnessed  the  killing,  made  one  hour  thereafter,  to  the 
•effect  that  she  recognized  defendant  as  the  person  who  killed  de- 
ceased, are  not  admissible  as  a  part  of  the  res  gestae."^  And  evidence 
of  what  defendant  said  to  a  witness  about  the  shooting  three  hours 
after  it  occurred  is  not  admissible  as  a  part  of  the  res  gestae.-^*  The 
outcries  of  a  person  murdered  during  the  same  burglary  at  which  de- 
ceased was  killed  have,  however,  been  held  admissible  as  part  of  the 
res  gestae.-^^  Declarations  of  a  bystander  at  the  time  of  the  killing 
have  been  held  admissible  as  part  of  the  res  gestae.-^''  So,  evidence 
of  the  shouts  of  the  crowd  with  whom  defendant  was  acting  at  the 
time  of  the  shooting  of  deceased  have  been  held  admissible  in 
some  jurisdictions.-"  But  other  jurisdictions  hold  that  the  remarks 
or  threats  of  the  crowd  present  at  the  killing  are  not  any  part  of  the 
res  gestae.^^* 

§  3031.  Dying  declarations. — The  subject  of  dying  declarations  is 
treated  at  considerable  length  in  another  part  of  this  work.-^"  It  is 
there  shown  that  the  rule  admitting  dying  declarations  applies  only 
in  criminal  cases,  and,  generally,  only  in  cases  of  homicide,  that  such 
declarations  are  really  secondary  or  hearsay  evidence,  but  are  ad- 
mitted in  such  cases  under  a  limitation  or  qualification  of  the  hear- 
say rule.   The  circumstances  and  marks  of  competency  and  tlie  limita- 

«'  Wood  V.  State,  92  Ind.  269.  ^'  State  v.  Wagner,  61  Me.  178. 

""Caw  v.  People,  3  Neb.  357.  ==« United   States  v.   Schneider,  21 

'''  State  v.  Talbert,  41  S.  Car.  526,  D.  C.  381. 

19  S.  B.  852.  ^'  Combs    v.     Commonwealth,    15 

===  Irby  v.  State,  25  Tex.  App.  203,  Ky.  L.  R.  659,  25  S.  W.  592. 

7  S.  W.  705.  '"^  Holt  V.  State,  9  Tex.  App.  571. 

=='  State  v.  Petty,  21  Kans.  54.  =^'  See,  Vol.   I.  Chap.  XV,   443.  et 

■"*  Evans  v.  State,  58  Ark.   47,  22  seq.,  §§  332,  359. 
S.  W.  1026. 

Vol.  4  Elliott  Ev. — 21 


§  3033.]  HOMICIDE.  322 

tions  upon  their  use  are  fully  stated  in  the  chapter  to  which  reference 
has  already  been  made.  It  will  he  sufficient,  therefore,  in  this  con- 
nection to  call  attention  to  some  of  the  more  recent  decisions  and  to 
review  some  of  the  illustrative  cases  showing  what  dying  declara- 
tions are  admissible  and  when  and  under  what  circumstances  they  are 
or  are  not  admitted. 


§  3032.  Dying  declarations — When  admissible. — Statements  made 
by  deceased  as  to  how  the  accused  shot  him  after  he  had  stated  to  the 
witness  that  he  was  satisfied  that  the  wound  would  kill  him,  are 
admissible  as  dying  declarations.^''''  So,  a  statement  made  by  the  de- 
ceased shortly  after  he  was  shot,  that  he  had  been  shot  to  death,  and 
that  a  negro  shot  him  and  a  white  man  gave  him  the  gun,  has  been 
held  admissible  as  a  dying  declaration.-"^  As  elsewhere  shown,  dying 
declarations  may  be  impeached,  and  statements  made  by  the  deceased 
after  he  was  wounded,  tending  to  contradict  his  dying  declarations 
to  others,  given  in  evidence,  are  admissible  for  this  purpose.-®^  It 
has  also  been  held  that  where  the  defendant  did  not  do  the  killing, 
but  was  present  with  the  one  who  did  do  it  at  the  time,  and  there  was 
evidence  of  a  conspiracy  connecting  him  therewith,  dying  declara- 
tions of  deceased  as  to  who  did  the  shooting  were  admissible  against 
such  defendant. 2 ''^  But  it  is  held  in  Georgia  and  many  other  states 
that  although  two  persons  killed  were  shot  in  the  same  fight,  the  dy- 
ing declarations  of  the  one  are  not,  as  such,  admissible  in  evidence 
on'' the  trial  of  the  slayer  for  the  murder  of  the  other.^'^''    The  fact 

=<=»  Gregory  v.  State,  140  Ala.  16,  37  but  compare,  State  v.  Taylor,  56  S. 

So.   259;    see  also,  Gibson  v.   State,  Car.  360,  34  S.  B.  939;  Wroe  v.  State. 

126  Ala.   59,  28   So.  673;    Jordan  v.  20  Ohio  St.  460. 

State.  82  Ala.  1,  2  So.  460;   State  v.  =°^  People  v.  Moran,  144  Cal.  48,  77 

Bowies,  146  Mo.  6,  47  S.  W.  892,  69  Pac.  777. 

Am.     St.     598;     Commonwealth     v.  =°^  Taylor  v.  State,  120  Ga.  857,  48 

Roddy,  184  Pa.  St.  274,  39  Atl.  211;  S.  E.  361;  see  also.  State  v.  Westfall, 

Comiaonwealth  v.  Matthews,  89  Ky.  49    Iowa    328;    Mora   v.    People,    19 

287,  12  S.  \V.  333.  Colo.    255,    35    Pac,   179;    Brown    v. 

="'  State  v.  Bordelon,  113  La.  Ann.  Commonwealth,   73   Pa.   St.   321,   13 

690,  37  So.  603.  Am.    R.    740;    State   v.    Fitzhugh,    2 

^"'^  Gregory  v.  State,  140  Ala.  16,  37  Ore.  227;   Radford  v.  State,  33  Tex. 

!S0.  259;  Dunn  v.  People,  172  111.  582,  Cr.  App.  520,  27  S.  W.  143;  but  com- 

50  N.  E.  137;    Nordgren  v.  People,  pare.  State  v.  Wilson,  23  La.  Ann. 

211  111.  425,  71  N.  E.  1042;   State  v.  558;    State   v.    Terrell,   12   Rich.    L. 

Charles,  111  La.  Ann.  933,  36  So.  29;  (S.  Car.)  321;  Rex  v.  Baker,  2  Mood, 

carver  v.  United   States,   164  U.   S.  &  R.  N.  P.  53. 
694,  17  Sup.  Ct.  228;   Vol.  I,  §  346; 


323  DYING   DECLARATIONS — WHEN   NOT   ADMISSIBLE.       [§    3033. 

that  there  were  eye-witnesses,   or  that  there   is   other   evidence   as 
to  the  facts,  does  not  render  dying  declarations  inadmissible.^^' 

§  3033.  Dying  declarations — When  not  admissible. — Dying  decla- 
rations, it  is  said  in  a  recent  case,  are  hearsay  evidence,  and  are  taken 
out  of  the  rule  excluding  such  evidence  because  of  reasons  of  necessity, 
and  because  it  is  supposed  that  a  realization  on  the  part  of  the  de- 
clarant of  the  certain  and  speedy  approach  of  death  affords  as  power- 
ful incentive  to  tell  the  truth  as  does  the  administration  of  an  oath.^*^^ 
It  is  also  held  in  the  same  case  that  in  order  to  render  them  ad- 
missible, it  must  be  first  shown  that  the  declarant  was  not  only  in 
articulo  mortis,  but  under  the  sense  of  impending  death  without 
hope  of  recovery,  at  the  time  such  declarations  were  made,  and  that 
statements  made  by  the  deceased  that  he  had  to  die  of  the  whipping 
he  had  received  from  the  defendant,  that  any  hour  or  any  day  he 
might  die,  do  not  sufficiently  show  his  sense  of  impending  death  to 
render  his  statements  competent  as  dying  declarations."^  But  in 
another  recent  case  where  a  witness  testified  that  the  person  making 
the  dying  declarations  afterwards  sought  to  be  introduced,  realized 
that  he  was  mortally  wounded,  an  objection  that  it  was  not  shown  that 
he  knew  at  the  time  of  making  the  declaration  that  he  was  in  ex- 
tremis-^^  was  held  to  be  without  merit.  A  proper  predicate  must, 
however,  be  laid  for  the  admission  of  such  declarations  when  they  are 
not  admissible  as  part  of  the  res  gestae.-*'^    Dying  declarations  are,  in 

"'^'Lyles  v.  State,  (Tex.  Cr.  App.)  La.  Ann.  463,  37  So.  30;  Rex  v.  Ab- 
86  S.  W.  763;  People  v.  Beverly,  108  bott,  (1903)  67  J.  P.  151. 
Mich.  509,  66  N.  W.  379;  State  v.  ^'^  Davis  v.  State,  120  Ga.  843,  48 
Yee  Wee,  7  Idaho  188,  61  Pac.  588;  S.  E.  305;  see  also,  Pitts  v.  State,  140 
Vol.  I,  §(  359.  For  other  cases  of  dy-  Ala.  70,  37  So.  101;  Fuqua  v.  Com- 
ing declarations  held  admissible,  monwealth,  26  Ky.  L.  R.  420,  81  S. 
see,  Boyd  v.  State,  (Miss.)  36  So.  W.  923;  Connell  v.  State,  (Tex.  Cr. 
525;  Zipperian  v.  People,  (Colo.)  79  App.)  81  S.  W.  746;  Crockett  v. 
Pac.  1018  (both  oral  and  written);  State,  (Tex.  Cr.  App.)  77  S.  W.  4; 
Lane  v.  State,  151  Ind.  511,  51  N.  E.  Hawkins  v.  State,  98  Md.  355,  57  Atl. 
1056  (same);  Shenkenberger  v.  27;  State  v.  Gray,  43  Ore.  446,  74 
State,  154  Ind.  630,  57  N.  E.  519.  Pac.  927. 

=*"  State  V.  Knoll,  (Kans.)  77  Pac.  ^^^  Wilson  v.  State,  140  Ala.  43,  37 

580.    The  fact  that  there  were  eye-  So.   93;   Sutherland  v.  State,    (Ga.) 

witnesses    does    not,    however,    pre-  48    S.    E.    915;    as    to    whether    the 

vent  the  reception  of  dying  declara-  question    of    the    sufficiency    of    the 

tions.     Lyles    v.    State,     (Tex.    Cr.  predicate  is  for  the  judge  or  jury, 

App.)  86  S.  W.  763.  see  and  compare,  Sims  v.  State,  139 

""See  also.  State  v.  Gianfala,  113  Ala.  74,  36  So.  138;   Commonwealth 


§  3034.]  HOMICIDE.  324 

general,  admissible  only  as  to  such  facts  as  the  declarant  could  have 
testified  to  if  he  had  been  living  and  testified  at  the  trial."''  It  has 
been  held  error  to  permit  a  witness  to  testify  that  the  deceased  stated 
that  "they  murdered  me  without  cause,""^  or  that  "Bill  Harris  is 
my  friend,  and  I  don't  want  nothing  done  to  him."-'^ 

§'3034.  Confessions. — The  subject  of  confessions,  like  that  of 
dying  declarations,  has  already  been  fully  discussed  in  another  part 
of  this  work.2"  All  that  is  necessary  in  this  connection,  therefore, 
is  to  review  some  of  the  more  recent  decisions,  applying  the  rules 
already  considered,  in  cases  of  homicide.  In  a  prosecution  for  mur- 
der, a  confession  freely  and  voluntarily  made  by  the  defendant  is 
admissible  as  in  other  criminal  cases.-'*  The  following  rules  upon 
the  subject  are  laid  down  in  a  recent  case.-"  When  the  proof  of. 
death  is  direct  and  positive  and  the  circumstances  are  such  as  to 
leave  no  room  for  doubt  that  the  deceased  was  murdered,  any  extra- 
judicial confession  by  the  accused  may  be  admitted  in  evidence  to 
establish  his  connection  with  the  crime ;  where  the  whole  of  a  written 
confession  admitting  the  crime  charged  and  other  crimes,  is  offered 
in  evidence  and  objected  to  by  the  defendant,  it  is  not  error  to  allow 
the  whole  confession  to  go  to  the  jury  under  instructions  that  it  is 
admitted  only  to  prove  the  killing  of  the  person  named  in  the  indict- 
ment and  that  the  jury  should  not  permit  the  statements  in  the  con- 

V.  Lawson,  25  Ky.  L.  R.  2187,  80  S.  292,  36  Pac.  139;   Sullivan  v.  State, 

W.  206;  Bateson  v.  State,   (Tex.  Cr.  102  Ala.  135,  15  So.  264,  48  Am.  St. 

App.)    80   S.   W.   88;    see   generally,  22;   declarations  of  the  deceased  to 

Vol.  I,  §§  355,  356.  the   effect   that  the   defendant   had 

2'oConnell  v.  State,  (Tex.  Cr.  given  her  some  medicine,  and  that 
App.)  81  S.  W.  746;  Montgomery  v.  it  had  killed  her,  and  that  she  was 
State,  80  Ind.  338,  41  Am.  R.  815;  bound  to  die,  made  while  she  was 
Vol.  I,  §§  339,  350.  Evidence  held  going  about,  and  evidently  not  in 
admissible  as  part  of  res  gestae  in,  a  realization  that  she  was  in  ex- 
People  V.  Glover,  141  Cal.  233,  74  tremis,  were  held  inadmissible  as 
Pac.  745.  dying    declarations     in.     Brown    v. 

"1  Bateson     v.     State,     (Tex.     Cr.  Commonwealth,  26   Ky.  L.  R.  1269, 

App.)  80  S.  W.  88.  83  S.  W.  645. 

"=  State   V.    Harris,   112    La.    Ann.  ="  See,  Vol.  I,  §§  271-296. 

937,  36  So.  810;  for  other  illustrative  "*  Plant  v.   State,  140  Ala.   52,  37 

cases,  see.  People  v.  Schievi,  96  App.  So.  159;  Wilson  v.  United  States,  162 

Div.  479,  89  N.  Y.   S.  564;    State  v.  U.  S.  613,  16  Sup.  Ct.  895;  see  also. 

Wood,  53  Vt.  560;    State  v.  Moody,  Vol.  I,  §§  273-287. 

18    Wash.    165,    51    Pac.    356    (prior  ="  State  v.  Knapp,  70  Ohio  St.  380, 

threats);    State  v.  Eddon,  8  Wash.  71  N.  E.  705. 


325  CONFESSIONS — PREVIOUS    CIRCUMSTANCES.  [§    3035. 

fession  to  prejudice  them  against  the  defendant;  and  where  facts 
proved  by  the  state  corroborate  the  confession  of  the  accused,  direct 
and  positive  evidence  of  the  corpus  delicti  is  not  indispensable  to 
the  admission  of  the  confession,  and  if  extrinsic  corroborative  facts, 
considered  with  the  confession,  persuade  the  jury  beyond  a  reason- 
able doubt  of  the  prisoner's  guilt,  the  evidence  will  support  a  ver- 
dict of  guilty.  The  mere  fact  that  the  defendant  was  under  arrest 
or  in  custody  wlien  he  made  the  confession  does  not  render  it  in- 
admissible.^^" And  in  the  absence  of  any  statutory  provision  upon  the 
subject,  it  seems  that  failure  to  caution  a  prisoner,  when  he  appears 
before  a  magistrate  and  makes  incriminating  statements  in  answer 
to  questions,  does  not  operate  to  exclude  them  where  they  were  volun- 
tary, and  not  the  product  of  hope  or  fear,  incited  by  some  word  or 
act  of  those  in'  authority .^^^  But  no  improper  inducement  must  be 
used,  and  the  confession  must  be  freely  and  voluntarily  made.-'^ 
Confessions  of  defendants,  induced  by  hanging  them  and  threatening 
their  lives  unless  they  confess,  are,  of  course,  incompetent.-'^  But  a 
voluntary  confession  of  the  accused  was  held  admissible  in  a  recent 
ease,  notwithstanding  he  was  a  negro  and  a  prisoner  at  the  time  in  a 
*'calaboose"  which  was  surrounded  by  a  crowd  of  white  men.^*^  In 
another  recent  case  a  homicide  had  been  committed,  and  the  husband 
of  the  deceased  was  arrested  for  the  crime  and  brought  to  the  police 
station,  and  his  son,  four  years  old,  was  brought  to  the  station  house, 
and  in  the  presence  of  his  father,  on  being  asked  as  to  the  circum- 
stances of  the  killing,  he  said  that  his  father  struck  his  mother  with 
scissors.  The  court  held  evidence  of  such  statement  was  inadmissible 
to  show  that  the  father  by  his  silence  at  the  time  confessed  the 
guilt.'^^  The  accused  is  usually  entitled,  when  an  alleged  confession 
is  introduced,  to  have  the  entire  statement  admitted. ^^^ 

§  3035.     Previous  circumstances — Threats,  preparations  and  previ- 
ous attempts. — The  threats  of  the  accused  made  previous  to  tlie  liomi- 

='"  State  V.   Worthen,    (Iowa)    100  ='^  Edmonson  v.   State,    (Ark.)    82 

N.  W.   330;    Calloway  v.   State,   103  S.  W.  203. 

Ala.  27,  15  So.  821;   Commonwealth  "» Hilburn  v.  State,  (Ga.)  49  S.  E. 

V.  Sheehan,  163  Mass.  170,  39  N.  E.  318. 

791;  Vol.  I,  §  287.  =^^  Geiger  v.  State,  70  Ohio  St.  400, 

"'State  V.  Hand,    (N.  J.)    58  Atl.  71  N.  E.  721. 

641;  see  also.  Vol.  I,  §  279.  ="=  State  v.  Busse,    (Iowa)    100  N. 

™Vol.  I,  §  273,  et  seq.  W.  536;   Williams  v.  State,  103  Ala. 

33,  15  So.  662;  Vol.  I,  §  295. 


§  3035.] 


HOMICIDE. 


326 


cide  are  admissible  against  liim,^^^  in  a  proper  case.  And,  even 
though  they  had  not  been  communicated  to  the  deceased,  threats 
made  by  the  defendant  previous  to  the  homicide,  are  competent  for 
the  purpose  of  showing  malice.^^*  Thus  the  threats  made  by  the  de- 
fendant against  the  deceased  are  admissible  as  tending  to  prove  the 
malice  charged  in  the  indictment,^^^  or  as  showing  the  defendant's 
disposition  and  feeling  towards  the  deceased.^^**  And  where  the  de- 
ceased had  instituted  a  criminal  prosecution  against  the  accused  and 
the  latter  had  used  threats  against  the  former,  evidence  thereof  was 
held  admissible  to  show  malice  and  premeditation.^"  So,  in  another 
case  threatening  language  used  was  held  competent  to  prove  that  the 
intent  was  premeditated.^^®  And  threats  running  through  many 
months  down  to  a  time  just  prior  to  the  killing  are  competent  on 
the  question  of  malice.^^s  But  the  defendant's  threat  against  a  cer- 
tain person  with  whom  he  had  been  quarreling  are  not  competent 


283  layers  V.  State,  62  Ala.  599; 
Painter  v.  People,  147  111.  444,  35  N. 
E.  64;  Cluck  v.  State,  40  Ind.  263; 
State  v.  McKinney,  31  Kans.  570,  3 
Pac.  356;  State  v.  Harrod,  102  Mo. 
590,  15  S.  W.  373;  Commonwealth  v. 
Crossmire,  156  Pa.  St.  304,  27  Atl. 
40;  Bryant  v.  State,  35  Tex.  Cr.  App. 
394,  33  S.  W.  978;  see  also.  Vol.  I, 
§§  163,  164. 

=»*  Wilson  V.  State,  110  Ala.  1,  20 
So.  415,  55  Am.  St.  17;  Phillips  v. 
State,  62  Ark.  119,  34  S.  W.  539; 
People  v.  Dice,  120  Cal.  189,  52  Pac. 
477;  Moore  v.  People,  26  Colo.  213, 
57  Pac.  857;  State  v.  Hoyt,  46  Conn. 
330;  Milton  v.  State,  40  Fla.  251, 
24  So.  60;  McDaniel  v.  State,  100 
Ga.  67,  27  S.  E.  158;  State  v.  Davis, 
6  Idaho  159,  53  Pac.  678;  McCoy  v. 
People,  175  111.  224,  51  N.  E.  777; 
Cluck  V.  State,  40  Ind.  263;  State  v. 
Sullivan,  51  Iowa  142,  50  N.  W.  572; 
Nichols  V.  Commonwealth,  11  Bush 
(Ky.)  575;  State  v.  Pain,  48  La. 
Ann.  311,  19  So.  138;  Commonwealth 
V.  Holmes,  157  Mass.  233,  32  N.  E. 
6,  34  Am.  St.  270;  People  v.  Curtis, 
52  Mich.  616,  18  N.  W.  385;  Burt  v. 
State,  72  Miss.  408,  16  So..  342,  48 


Am.  St.  563;  State  v.  Wright,  141 
Mo.  333,  42  S.  W.  934;  State  v. 
Sloan,  22  Mont.  293,  56  Pac.  364; 
State  v.  Bonds,  2  Nev.  265;  State  v. 
Palmer,  65  N.  H.  216,  20  Atl.  6;  Peo- 
ple V.  Decker,  157  N.  Y.  186,  51  N. 
E.  1018;  State  v.  Matthews,  80  N. 
Car.  417;  Stewart  v.  State,  1  Ohio 
St.  66;  State  v.  Powers,  10  Ore.  145, 
45  Am.  R.  138;  Commonwealth  v. 
Major,  198  Pa.  St.  290,  47  Atl.  741, 
82  Am.  St.  803;  State  v.  Lee,  58  S. 
Car.  335,  36  S.  E.  706;  Rea  v.  State, 
8  Lea  (Tenn.)  356;  Strange  v.  State, 
38  Tex.  Cr.  App.  280,  42  S.  W.  551; 
State  V.  Bradley,  67  Vt.  465,  32  Atl. 
238;  White  v.  Territory,  3  Wash. 
Ter.  397,  19  Pac.  37. 

"^=  Babcock  v.  People,  13  Colo.  515, 
22  Pac.  817;  State  v.  Pain,  48  La. 
Ann.  311,  19  So.  138. 

-^"^  State  v.  Sullivan,  51  Iowa  142, 
50  N.  W.  572;  State  v.  Stackhouse, 
24  Kans.  445. 

="  State  V.  Birdwell,  36  La.  Ann. 
859. 

=85  People  V.  Brunt,  11  N.  Y.  St.  59. 

=8^  Rains  v.  State,  88  Ala.  91,  7  So. 
315. 


327  '  THREATS.  [§    303.J. 

on  liis  trial  for  killing  another  person  in  another  quarrel,  there  being 
no  connection  between  the  two.^^"  In  some  jurisdictions  it  is  held 
that  a  threat  to  kill  "some  one"  is  sufficient,2»i  although  not  expressly 
directed  against  the  deceased.  Thus,  the  statements  of  the  accused 
made  shortly  before  tlic  killing,  to  the  effect  that  he  was  going  to 
kill  "somebody,"  without  designating  whom,  have  been  held  ad- 
missible.-"- A  threat  need  not  name  the  person  threatened,  where  the 
other  facts  adduced  give  "individuation"  to  it.^^^  Thus,  evidence  is 
admissible  of  threats  of  violence  made  by  the  accused  shortly  before 
the  homicide  against  "policemen,"  though  not  particularly  against 
the  deceased,-'''*  who  was  a  policeman.  And  so  evidence  that  the 
accused  stated,  a  short  time  before  the  alleged  killing,  that  he 
intended  to  get  even  or  square  with  somebody,  without  naming  the 
person,  has  been  held  competent.^"^  And  evidence  of  a  statement  by 
the  accused  a  few  hours  before  the  homicide  that  he  intended  to  have 
satisfaction  before  he  slept  that  night,  has  also  been  held  admissible 
against  him.-"*^  But  the  true  rule  as  deduced  from  the  decisions 
seems  to  be  that  in  order  for  threats  to  be  admissible  they  must 
either  show  a  determination  to  injure  some  particular  person  or 
must  be  statements  of  ill-will  or  hate  towards  a  class  of  which  the 
person  killed  is  one,  and  must  be  capable  of  being  construed  to  refer 
to  the  deceased.^''^  Evidence  that,  a  week  before  the  homicide,  de- 
fendant said  to  a  third  person  that  he  would  "fix"  deceased  has 
been  held  competent.^''^  And  it  has  been  held  that  the  prosecution  may 
show  that  the  accused  was  looking  and  inquiring  for  deceased  a  short 

=»"  Abernethy     v.     Commonwealth,  =°»  State  v.  Harlan,  130  Mo.  381,  32 

101  Pa.  322.  S.  W.  997. 

=''  Hopkins   v.   Commonwealth,   50  =""  State  v.  Russell,  91  N.  Car.  624. 

Pa.  St.  9,  88  Am.  Dec.  518;  Benedict  ="  Jordan  v.  State,  79  Ala.  9;  Bill- 

V.  State,  14  Wis.  423;  see  also.  State  ings  v.  State,  52  Ark.  303,  12  S.  W. 

V.  Hoyt,  47  Conn.  518,  36  Am.  R.  89.  574;  People  v.  Gross,  123  Cal.  389,  55 

^"^  Benedict  v.  State,  14  Wis.  423;  Pac.  1054;  Parker  v.  State,  136  Ind. 

Hopkins   v.   Commonwealth,   50   Pa.  284,  35  N.  E.  1105;    State  v.  Pierce, 

St.  9,  88  Am.  Dec.  518;  but  compare,  90  Iowa  506,  58  N.  W.  891;   State  v. 

Abernethy    v.    Commonwealth,    101  Fitzgerald,    130    Mo.    407,   32    S.   W. 

Pa.  St.  322,  328,  distinguishing  the  1113;    State  v.  Hymer,  15  Nev.  49; 

last  case  above  cited.  Hardy  v.  State,  31  Tex.  Cr.  App.  289, 

=™^  Hardy  v.  State,  31  Tex.  Cr.  App.  20  S.  W.  561;  Snodgrass  v.  Common- 

289,  20  S.  W.  561;  Wharton  Cr.  Ev.,  wealth,  89  Va.  679,  17  S.  E.  238. 

(9th  ed.)   §  756.  -«  White  v.  State,  32  Tex.  Cr.  App. 

=«*  Dixon    v.    State,    13    Fla.    636;  625,  25  S.  W.  784. 
State  v.  Grant,  79  Mo.  113,  49  Am. 
R.  218. 


§  3036.]  HOMICIDE.  328 

time  Ijefore  the  killing,  and  what  he  said  at  the  time  in  regard  to  de- 
ceased.^^^  The  probative  force  of  threats  is  a  question  for  the  jury, 
depending  upon  the  circumstances  under  which  they  were  made, 
whether  or  not  repeated,  the  intervening  time,  whether  or  not  there 
was  an  opportunity  for  carrying  them  into  effect  and  other  such  cir- 
cumstances.^°°  And  whether  or  not  such  threats  refer  to  the  de- 
ceased is  a  question  for  the  jury,  to  he  considered  with  the  other 
evidence.^^^  But  the  question  of  the  remoteness  of  the  threats  is  held 
to  be  a  question  for  the  court  in  the  exercise  of  a  sound  discretion.^"^ 
It  has  been  held  proper  to  show  that,  a  few  days  before  the  killing, 
defendant  bought  a  gun  and  some  shot  like  those  taken  from  the 
wound  which  killed  deceased. ^°^  And  evidence  that  the  accused  and 
his  accomplice  practiced  shooting  at  a  mark  before  the  murder  has 
likewise  been  held  competent.^"*  So  evidence  was  held  competent 
that  the  accused  bought  some  strychnine  the  previous  year  where  the 
charge  was  for  murder  by  poisoning  with  strychnine.^"^  But  it  has 
been  held  that  mere  threats  to  kill  another,  not  connected  with  any 
other  evidence  joining  the  party  with  the  commission  of  the  homi- 
cide he  threatened  to  commit,  do  not  constitute  a  sufficient  basis  upon 
which  the  jury  may  find  a  verdict  of  guilty.^^'^  And  it  has  also  been 
held  that  declarations  by  the  deceased  of  peaceful  intent,  communi- 
cated to  defendant,  are  admissible  in  rebuttal  of  evidence  of  previous 
threats  by  the  deceased  against  the  defendant.^"^ 

§  3036.  Previous  circumstances — Some  others. — Evidence  as  to 
previous  quarrels  and  ill  feelings  is  usually  competent,  and  an  ad- 
mission by  the  accused  that  he  had  a  previous  difficulty  with  deceased 
has  been  held  competent  against  him  as  tending  to  establish  malice 

=»»  State  v.  Home,  9  Kans.  119.  Mass.  233,  32  N.  E.  6,  34  Am.  St.  270. 

2°"  Beavers  v.  State,  103  Ala.  36,  15  '"'  McLean  v.  State,  1  Tenn.  Cas. 

So.  616;  People  v.  Hong  Ah  Duck,  61  478. 

Cal.   387;    State   v.    Hoyt,   46   Conn.  ^^  People   v.    McGuire,    135    N.    Y. 

330;  Harris  v.  State,  109  Ga.  280,  34  639,  32  N.  B.  146. 

S.  E.  583;  Bolzer  v.  People,  129  HI.  ^'^  State  v.  Cole,  94  N.  Car.  958. 

112,  21  N.  E.  818;  Goodwin  v.  State,  ^^  Bailey  v.  State,  104  Ga.  530,  30 

96   Ind.    550;    State   v.   Wright,    141  S.  E.  817;   Jones  v.  State,  57  Miss. 

Mo.  333,  42  N.  W.  934.  684;   State  v.  Glahn,  97  Mo.  679,  11 

""■  State  V.  Belton,  24  S.  Car.  185,  S.  W.  260. 

58  Am.  R.  245;  State  v.  Crabtree,  111  ^"^  Taylor  v.  State,   (Ga.)  49  S.  E. 

Mo.  136,  20  S.  W.  7.  303. 

3"2  Commonwealth   v.   Holmes,  157 


329  PREVIOUS    CIRCUMSTANCES.  [§    3036. 

or  motive.^"*  And  evidence  of  a  previous  difficulty  between  the  ac- 
cused and  deceased  has  been  held  admissible  to  show  express  mal- 
ice, whether  it  be  proved  that  the  ill  feeling  continued  until  the  homi- 
cide or  not.^°^  So  testimony  of  a  pre-existing  enmity  or  a  previous 
quarrel  or  grudge  may  be  admissible  to  prove  malice,^^"  as  is  evidence 
that  the  accused  had  bad  feelings  against  the  deceased  on  account  of 
some  disputed  account.^^^  So  evidence  of  a  meeting  and  altercation 
between  the  parties  earlier  in  the  evening  of  the  killing  is  admissi- 
ble.^^^  The  nearness  or  remoteness  of  the  difficulty  and  its  apparent 
connection  or  lack  of  connection  as  a  cause  or  with  the  cause  of  the 
homicide  may,  however,  largely  determine  the  question  of  the  ad- 
missibility of  evidence  concerning  it.  Thus,  on  a  murder  trial  evi- 
dence of  a  difficulty  between  the  deceased  and  the  defendant  three 
weeks  before  the  killing,  was  held  admissible  as  bearing  upon  the 
question  of  malice ;^^^  while  a  quarrel  occurring  several  months  be- 
fore the  homicide,  and  not  connected  with  the  cause  occasioning  it, 
was  held  not  to  be  admissible.^^*  Upon  the  question  of  motive  or 
malice,  however,  the  line  is  not  very  closely  drawn,  and  something  is 
left  to  the  discretion  of  the  court  in  admitting  evidence  of  the  char- 
acter under  consideration,  notwithstanding  it  goes  back  for  a  consid- 
erable time.  Thus,  it  has  been  held  that  the  admission  in  evidence  in 
a  murder  case  of  ill-feeling  on  the  part  of  defendant,  extending  back 
two  years  before  the  homicide,  cannot  be  said  to  exceed  the  limits  of 
the  court's  discretion.^^^  So,  where  one  was  charged  with  murdering 
his  wife,  evidence  of  quarrels  between  them,  two  or  more  years  be- 
fore, was  held  admissible.^^®  In  many  other  cases  evidence 
of  previous  menaces,^  ^^  and  previous  assaults  and  threats  to  kill 
or  the  like  has  been  held  admissible  in  order  to  prove 
malice  or  intent.^ ^*  Thus,  evidence  of  assaults  and  threats  by  the 
prisoner  on  the  prosecutor  prior  to  the  one  for  which  the  prisoner 
is  indicted  has  been  held  admissible  to  show  intent  in  a  prosecution  for 

""^  Finch  V.  State,  81  Ala.  41,  1  So.  also,    State   v.    Baker,    30    La.    Ann. 

565.  1134. 

^o'  Starke  v.  State,  81  Ga.  593,  7  S.         •='=  People  v.  Bemis,  51  Mich.  422, 

E.  807.  16  N.  W.  794. 

""  State  V.   D'Angelo,   9   La.   Ann.         ^"'  Sayres  v.  Commonwealth,  88  Pa. 

46.  St.  291;  Koerner  v.  State,  98  Ind.  7. 

=>"  State  V.  Gooch,  94  N.  Car.  987.  ''"  Anderson  v.  State,  15  Tex.  App. 

='=  White    V.    State,    30    Tex.    App.  447. 
652,  18  S.  W.  462.  ^''^  Painter  v.  People,  147  111.  444,  35 

"5  Brown  v.  State,  51  Ga.  502.  N.  E.  64. 

^"  Pound  V.  State,  43  Ga.  88;   see 


3036.] 


HOMICIDE. 


330 


assault  with  intent  to  murder  j^^**  and  so  has  evidence  of  the  conduct 
and  feelings  of  defendant  towards  his  victim,  and  that  he  had  made 
previous  threats  to  kill  his  victim.^ ^"^  And  the  fact  that  the  de- 
fendant on  the  morning  of  the  murder  had  his  knife  pointed  with 
which  he  afterwards  committed  the  crime,  is  competent  evidence  upon 
the  question  of  deliberation  and  intent.^  ^^  So  evidence  that  the  de- 
fendant purchased  a  gun  a  few  weeks  before  the  homicide,  and  prac- 
ticed with  it,  is  admissible  as  showing  the  condition  of  his  mind,  and 
the  animus  with  which  the  act  was  done.^^-  It  has  been  held  that 
evidence  that  defendant  started  towards  deceased  without  a  gun  and 
went  back  and  got  it  on  the  advice  of  his  brother,  who  stated  that 
he  was  satisfied  that  deceased  had  a  pistol,  is  admissible  to  overcome 
the  state's  theory  that  defendant,  when  he  started,  intended  to  kill 
deceased.^^^  There  is  a  long  line  of  decisions  to  the  effect  that  evi- 
dence of  the  relations  and  feelings  existing  between  the  accused  and 
the  deceased  is  admissible.^-*  Likewise  there  is  a  line  of  decisions  to 
the  effect  that  the  state  may  introduce  evidence  of  previous  ill-treat- 
ment, quarrels  and  difficulties,  for  the  purpose  of  determining  the 
existence  of  malice  or  motive.^-^    But  it  may  be  stated  as  a  general 


"» Gray  v.  State,  63  Ala.  66. 

==»  People  v.  Jones,  99  N.  Y.  667,  2 
N.  E.  49. 

="  Walsh  v.  People,  88  N.  Y.  458. 

^--  Boiling  v.  State,  54  Ark.  588,  16 
S.  W.  658;  People  v.  McGulre,  135  N. 
Y.  639,  32  N.  E.  146. 

=*="  Simmons  v.  State,  31  Tex.  Cr. 
App.  227,  20  S.  W.  573. 

"^  Allen  V.  State,  111  Ala.  80;  20 
So.  490;  Phillips  v.  State,  62  Ark. 
119,  34  So.  539;  People  v.  M'Kay, 
122  Cal.  628,  55  Pac.  594;  Shaw  v. 
State,  60  Ga.  246;  Simons  v.  People, 
150  111.  66,  36  N.  E.  1019;  Pettit  v. 
State,  135  Ind.  393,  34  N.  E.  1118; 
State  v.  Helm,  97  Iowa  378,  66  N.  W. 
751;  O'Brien  v.  Commonwealth,  89 
Ky.  354,  12  S.  W.  471 ;  State  v.  Font- 
enot,  48  La.  Ann.  305,  19  So.  113; 
State  V.  Savage,  69  Me.  112;  Garlitz 
V.  State,  71  Md.  293,  18  Atl.  39; 
Commonwealth  v.  Holmes,  157  Mass. 
233.  32  N.  E.  6,  34  Am.  St.  270;  Peo- 
ple v.  Parmelee,  112   Mich.   291,  70 


N.  W.  577;  State  v.  Lentz,  45  Minn. 
177,  47  N.  W.  720;  Webb  v.  State,  73 
Miss.  456,  19  So.  238;  State  v.  Tetta- 
ton,  159  Mo.  354,  60  S.  W.  743;  Peo- 
ple v.  Benham,  160  N.  Y.  402,  55  N. 
E.  11;  State  v.  Gooch,  94  N.  Car. 
987;  State  v.  Ingram,  23  Ore.  434,  31 
Pac.  1049 ;  Commonwealth  v.  Krause, 
193  Pa.  St.  306,  44  Atl.  454;  State  v. 
Senn,  32  S.  Car.  392,  11  S.  E.  292; 
Burnett  v.  State,  14  Lea  (Tenn.) 
439;  Turner  v.  State,  33  Tex.  Cr. 
App.  103,  25  S.  W.  635;  Boyle  v. 
State,  61  Wis.  440,  21  N.  W.  289. 

'"-'  Finch  v.  State,  81  Ala.  41,  1  So. 
565;  People  v.  Chaves,  122  Cal.  134, 
54  Pac.  596;  State  v.  Green,  35  Conn. 
203;  Starke  v.  State,  81  Ga.  593,  7 
S.  E.  807;  Painter  v.  People,  147  111. 
444,  35  N.  E.  64;  Koerner  v.  State,  98 
Ind.  7;  State  v.  Helm,  97  Iowa  378, 
66  N.  W.  751;  State  v.  O'Neil,  51 
Kans.  651,  33  Pac.  287;  Thomas  v. 
Commonwealth,  14  Ky.  L.  R.  288,  20 
S.  W.  226;  Williams  v.  State,  64  Md. 


•331 


PROCEEDINGS    AT    INQUEST. 


[§    3037. 


rule  that  the  defendant  will  not  be  allowed  in  the  first  instance  to 
bring  in  testimony  concerning  previous  quarrels  and  troubles/-''  at 
least  where  there  is  no  question  of  self-defense  or  the  like.  Yet  such 
testimony  will  be  admitted  when  it  tends  to  show  self-defense,  and 
there  is  doubt  as  to  which  of  the  parties  commenced  the  fatal  quar- 
rel.^^'  It  is  held  everywhere  that  inquiries  into  the  particulars,  details 
or  merits  of  previous  quarrels  or  difficulties  are  not  competent. ^-^  And 
evidence  as  to  the  relations  and  feelings,  or  the  occurrence  of  a 
previous  difficulty  between  the  defendant  or  the  deceased  and  some 
other  person  is  as  a  general  rule  incompetent ;  that  is,  only  facts  con- 
cerning difficulties  between  the  defendant  and  the  deceased  are  usually 
competent.  ^-^ 

§  3037.     Proceedings  at  inquest. — The  proceedings  before  the  coro- 
ner are  not  in  most  jurisdictions  admissible  in  evidence*^"  on  the  trial 


384,  1  Atl.  887;  Commonwealth  v. 
Storti,  177  Mass.  339,  58  N.  E.  1021; 
Herman  v.  State,  75  Miss.  340,  22 
So.  823;  State  v.  Dettner,  124  Mo. 
426,  27  S.  W.  1117;  People  v.  Ben- 
ham,  160  N.  Y.  402,  55  N.  E.  11; 
State  V.  Rash,  12  Ired.  L.  (N.  Car.) 
382,  55  Am.  Dec.  420;  Common- 
wealth V.  Crossmire,  156  Pa.  St.  304, 
27  Atl.  40;  Stone  v.  State,  4  Humph. 
(Tenn.)  27;  State  v.  Bradley,  67 
Vt.  465,  32  Atl.  238;  Nicholas  v. 
Commonwealth,  91  Va.  741,  21  S.  B. 
364;  State  v.  Ackles,  8  Wash.  462,  36 
Pac.  597;  Boyle  v.  State,  61  Wis. 
440,  21  So.  289. 

^-"Kilgore  v.  State,  124  Ala.  24, 
27  So.  4;  Foster  v.  State,  70  Miss. 
755,  12  So.  822;  State  v.  Sullivan, 
51  Iowa  142,  50  N.  W.  572;  State  v. 
Cooper,  32  La.  Ann.  1084. 

""''  Holley  V.  State,  39  Tex.  Cr.  App. 
301,  46  S.  W.  39;  State  v.  Peterson, 
24  Mont.  81,  60  Pac.  809;  State  v. 
borter,  52  Kans.  531,  34  Pac.  1036; 
People  V.  Hecker,  109  Cal.  453,  42 
Pac.  307;  Coxwell  v.  State,  66  Ga. 
309;  Gunter  v.  State,  111  Ala.  23,  20 
So.  632;  State  v.  Seymour,  94  Iowa 
699,  63  N.  W.  661;   Austin  v.  Com- 


monwealth, 19  Ky.  L.  R.  474,  40  S. 
W.  905;  Marnoch  v.  State,  7  Tex. 
App.  269. 

^-'  Rutledge  v.  State,  88  Ala.  85,  7 
So.  335  People  v.  Thomson,  92  Cal. 
506,  28  Pac.  589;  People  v.  Yokum, 
118  Cal.  437,  50  Pac.  686;  State  v. 
Anderson,  45  La.  Ann.  651,  12  So. 
737;  State  v.  Sorter,  52  Kans.  531, 
34  Pac.  1036. 

^-^  Bird  v.  United  States,  180  U.  S. 
356,  21  Sup.  Ct.  403;  Dabney  v. 
State,  113  Ala.  38,  21  So.  211,  59  Am. 
St.  92;  People  v.  Mitchell,  100  Cal. 
328,  34  Pac.  698;  Hirschman  v.  Peo- 
ple, 101  111.  568;  Pettit  v.  State,  135 
Ind.  393,  34  N.  E.  1118;  Caskey  v. 
Commonwealth,  15  Ky.  L.  R.  257,  23 
S.  W.  368;  State  v.  Bowser,  42  La. 
Ann.  936,  8  So.  474;  People  v.  Simp- 
son, 48  Mich.  474,  12  N.  W.  662;  Ma- 
bry  v.  State,  71  Miss.  716,  14  So. 
267;  State  v.  Anderson,  4  Nev.  265; 
People  v.  Larubia,  140  N.  Y.  87.  35 
N.  E.  412;  Dorsey  v.  State,  34  Tex. 
651. 

""State  V.  Row,  81  Iowa  138,  46 
N.  W.  872;  Whitehurst  v.  Common- 
wealth, 79  Va.  556;  Colquit  v.  State, 
107  Tenn.  381,  64  S.  W.  713;    State 


§  3038.]  HOMICIDE.  332 

of  an  indictment  for  homicide.  Thus  it  has  been  held  that  the  min- 
utes kept  b}'  a  coroner  of  an  inquest  held  by  him  are  not  competent 
evidence,  and  it  is  said  that  the  facts  contained  in  them  should  be 
proved  by  the  testimony  of  the  coroner.^^^  And  it  has  also  been  held 
that  a  written  statement  of  the  testimony  of  a  witness  given  before 
the  coroner  cannot  be  received,  although  the  witness  has  removed 
from  the  state.^^-  But  it  has  been  held  that  the  deposition  of  a  wit- 
ness taken  at  the  coroner's  inquest  is  admissible  on  behalf  of  the  ac- 
cused, when  the  witness  has  died  since  the  inquest. ^^^  And  that  a 
deposition  of  a  witness  at  the  coroner's  inquest  is  admissible,  on  the 
trial  of  another  person  for  the  murder,  to  contradict  such  witness. ^^* 
So,  the  coroner's  inquest  held  on  the  body  of  the  deceased  has  been 
held  competent  evidence  of  the  physical  facts  as  to  the  death.^^^ 
And  a  deposition  or  statement  made  and  signed  by  the  accused  before 
the  coroner  or  committing  magistrate  may  be  competent  against  him 
as  an  admission  or  a  confession,  or  at  least  to  contradict  him.^^^ 

§  3038.  Evidence  as  to  character — Of  deceased. — There  is  some 
conflict  of  authority  as  to  whether  evidence  of  the  character  of  the 
person  killed  or  assaulted  is  admissible  on  behalf  of  the  accused. 
The  weight  of  authority  would  seem  to  be  that  such  evidence  is  not 

v.     Turner,     Wright      (Ohio)      20;  »' State    v.    McNeil,    33    La.    Ann. 

Wheeler  v.   State,   34  Ohio   St.   394,  1332. 

398;   but  see.  People  v.   Devine,  44  ^^*  Wormeley  v.  Commonwealth,  10 

Cal.   452;    Haines  v.   State,   109   Ga.  Gratt.   (Va.)   658. 

526,   35    S.   E.   141;    State  v.   Jones,  =^=^  State  v.  Parker,  7  La.  Ann.  83; 

29  S.  Car.  227,  7  S.  E.  296;  there  is  but   not   as   to    recital   of   facts   as 

considerable  conflict  upon  the  gen-  to  the  cause  of  death  and  the  guilt 

eral   subject  of   receiving  coroners'  of  the  accused.   State  v.  Melville,  10 

records  and  verdicts,  and  a  distinc-  La.  Ann.  456;   State  v.  Tate,  50  La. 

tion  is  sometimes  made  between  the  Ann.  1183,  24  So.  592. 

verdict   and    the   other   proceedings  ^^^  See,  Rex  v.  Chappel,  1  Mood.  & 

or  records.    Much  depends  upon  the  R.  N.  P.  395;  Rex  v.  Hopes,  7  Car.  & 

statute    of    the    particular    jurisdic-  P.  136;    Lambe's  Case,  2  Leach  Cr. 

tion.    See  generally.  Vol.  II,  §  1291,  Law    (3d    ed.)    625,    630;    see    also, 

and  Vol.  Ill,  §.  2012.  Sage  v.  State,  127  Ind.  15,  26  N.  E. 

="Bass    V.    State,    29    Ark.    142;  667;   Epps  v.  State,  102  Ind.  539,  1 

Payne  v.   State,  66  Ark.   545,   52   S.  N.   E.   491;    Davidson   v.    State,   135 

W.  276;    State  v.   Hayden,  45  Iowa  Ind.    254,    34    N.   E.    972;    Woods   v. 

11.  State,    63    Ind.    353;    but    compare, 

^^'-Dupree  v.  State,  33  Ala.  380,  73  Dunn  v.   State,  2  Ark.  229,  35  Am. 

Am.   Dec.   422.     See  also.   Smith  v.  Dec.    54.      See    generally.    Vol.    II, 

State,  (Tex.  Civ.  App.)  85  S.  W.  §  1291,  and  note  in  68  L.  R.  A.  285„ 
1153. 


333 


CHARACTER   OF   DECEASED. 


[§    3038. 


usually  admissible  in  the  first  instance.^=''  Thus,  it  is  held  that  evi- 
dence is  not  admissible  on  the  part  of  the  accused  as  to  the  character 
of  the  deceased  for  peace  and  quietness.^^^^  Nor  can  such  evidence  or- 
dinarily be  introduced  by  the  state  in  the  first  instance.^^®  Yet  while 
evidence  of  the  quiet,  peaceable  disposition,  or  sober  and  industrious 
habits  of  the  deceased,  or  of  his  general  reputation  as  a  good  man 
cannot  be  proved  in  the  first  instance,  such  evidence  may  be  introduced 
by  the  state  to  rebut  evidence  attacking  the  character  of  the  deceased 
presented  by  the  accused.^*"  But  where  the  general  character  of  de- 
ceased was  not  attacked  or  put  in  issue  by  defendant  it  is  held  error 
to  admit  evidence  on  behalf  of  the  state  to  sustain  it.^"  Where  the 
evidence  tends  to  show  that  the  accused  acted  in  self-defense  and  was 
acquainted  with  the  bad  and  quarrelsome  character  of  the  deceased, 
then  such  character  of  deceased  may  be  shown  in  evidence.^^*^  Sucli 
evidence  is  admissible  to  show  the  defendant's  state  of  mind  and  the 
reasonableness  of  his  apprehension  of  violence,^'*^  and  when  admissible 


=^'  Gardner  v.  State,  90  Ga.  310,  17 
S.  E.  86,  35  Am.  St.  202;  State  v. 
McCarthy,  43  La.  Ann.  541,  9  So. 
493;  Commonwealth  v.  Ferrigan,  44 
Pa.  St.  386;  Gandolfo  v.  State,  11 
Ohio  St.  114;  Garner  v.  State,  28 
Fla.  113,  9  So.  835;  Underhill  Cr. 
Ev.,  §  324;  Fields  v.  State,  47  Ala. 
608,  11  Am.  R.  771. 

^=*  People  V.  Munn,  (Cal.)  7  Pac. 
790. 

".23  Parker  v.  Commonwealth,  96 
Ky.  212,  28  S.  W.  500;  Roten  v. 
State,  31  Fla.  514,  12  So.  910;  Lem- 
ons v.  State,  97  Tenn.  560,  37  S.  W. 
552;  Ben  v.  State,  37  Ala.  103;  Peo- 
ple v.  Garbutt,  17  Mich.  9,  97  Am. 
Dec.  168;  State  v.  McCarthy,  43  La. 
Ann.  541,  9  So.  493;  Moore  v.  State, 
(Tex.  Cr.  App.)  79  S.  W.  565;  State 
V.  Eddon,  8  Wash.  292,  36  Pac.  139. 

=*"  Lemons  v.  State,  97  Tenn.  560, 
37  S.  W.  552;  Hussey  v.  State,  87 
Ala.  121,  6  So.  420;  People  v.  Powell, 
87  Cal.  348,  25  Pac.  481;  State  v. 
Nash,  45  La.  Ann.  974,  13  So.  732, 
734;  Ben  v.  State,  37  Ala.  103; 
Thrawley  v.  State,  153  Ind.  375,  55 


N.  E.  95;  Martin  v.  State,  44  Tex. 
Cr.  App.  279,  70  S.  W.  973;  Pettis  v. 
State,  (Tex.  Cr.  App.)  81  S.  W.  312; 
Davis  v.  People,  114  111.  86,  29  N.  E. 
192.  But  it  is  held  that  this  should 
go  to  his  reputation  rather  than  to 
the  actual  fact  that  he  was  a  dan- 
gerous man.  Stalcup  v.  State,  146 
Ind.  270,  45  N.  E.  334;  People  v.  An- 
derson, 39  Cal.  703. 

^"  Parker  v.  Commonwealth,  96 
Ky.  212,  28  S.  W.  500;  State  v.  Ed- 
don, 8  Wash.  292,  36  Pac.  139. 

"-People  v.  Lamb,  2  Keyes  (N. 
Y.)  360;  State  v.  Rollins,  113  N. 
Car.  722,  18  S.  E.  394;  People  v. 
Powell,  87  Cal.  348,  25  Pac.  481. 

=="  Smith  v.  United  States,  161  U. 
S.  85,  16  Sup.  Ct.  483;  Riley  v.  Com- 
monwealth, 94  Ky.  266,  22  S.  W.  222; 
Perry  v.  State,  94  Ala.  25,  10  So. 
650;  State  v.  Collins.  32  Iowa  36; 
State  v.  Shafer,  22  Mont.  17,  55  Pac. 
526;  Wesley  v.  State,  37  Miss.  327, 
75  Am.  Dec.  62;  People  v.  Druse,  103 
N.  Y.  655,  8  N.  E.  733;  State  v.  Mc- 
Iver,  125  N.  Car.  645,  34  S.  E.  439; 
Upthegrove  v.  State,  37  Ohio  St.  662. 


3038.] 


HOMICIDE. 


OO-i 


only  for  that  purpose  it  must  generally  be  shown  that  it  was  known,, 
or  must  reasonably  have  been  known,  to  the  defendant.^**  When  ad- 
missible, it  is  the  character  of  the  deceased  for  violence  and  quarrel- 
someness or  for  peace  and  quietude  at  the  date  of  the  homicide  which 
is  relevant.^*^  Such  evidence  may  also  be  admissible,  in  case  of 
doubt  as  to  which  party  was  the  aggressor,  as  tending  to  solve  that 
question  ;^*'^  and  in  such  a  case  it  would  seem  that  it  is  unnecessary 
to  show  knowledge  on  the  part  of  the  defendant,  as  it  is  admitted  to 
show  what  the  deceased  probably  did  rather  than  as  to  the  defend- 
ant's state  of  mind.^*^  The  reputation  of  the  deceased  may  be  ad- 
mitted in  evidence^'*^  in  a  proper  case,  and  it  may  be  presumed  to  be 
known  to  the  defendant.^*'*  But  evidence  of  the  moral  character  of 
the  deceased  is  not  admissible.^^"  And  evidence  that  the  deceased  was 
a  quarrelsome  man,  of  a  violent  temper,  and  dangerous  when  ex- 
cited, is  not  admissible^^^  without  laying  the  proper  foundation  or 
except  for  the  purposes  and  under  the  circumstances  already  stated. 


"^People  v.  Rodawald,  177  N.  Y. 
408,  70  N.  E.  1;  Commonwealth  v. 
Straesser,  153  Pa.  St.  451,  26  Atl. 
17 ;  State  v.  Nash,  45  La.  Ann.  1137, 
13  So.  732;  State  v.  Kennade,  121 
Mo.  405,  26  S.  W.  347;  State  v.  Tur- 
pin,  77  N.  Car.  473,  24  Am.  R.  455; 
Henderson  v.  State,  12  Tex.  525. 

^'^^Copeland  v.  State,  41  Fla.  320, 
26  So.  319;  Martin  v.  State,  90  Ala. 
602,  8  So.  858;  Fields  v.  State,  47 
Ala.  603,  11  Am.  R.  771;  State  v. 
Pettit,  119  Mo.  410,  24  S.  W.  1014; 
Commonwealth  v.  Hoskins,  18  Ky. 
L.  R.  59,  35  S.  W.  284;  State  v. 
Thompson,  i09  La.  Ann.  296,  33  So. 
320;  State  v.  Sumner,  130  N.  Car. 
718,  41  S.  E.  803;  Bowlus  v.  State, 
130  Ind.  227,  28  N.  E.  1115;  State  v. 
Turner,  29  S.  Car.  34,  6  S.  E.  891; 
Plasters  v.  State,  1  Tex.  App.  673; 
Smith  V.  United  States,  161  U.  S. 
85,  16  Sup.  Ct.  483. 

=**"  State  V.  Spendlove,  44  Kans.  1, 
24  Pac.  67;  Williams  v.  Fambro,  30 
Ga.  232;  Palmore  v.  State,  29  Ark. 
248;  State  v.  Robinson,  52  La.  Ann. 
616,  27   So.  124;    State  v.  Rider,  90 


Mo.  54,  1  S.  W.  825;  State  v.  Turpin, 
77  N.  Car.  473,  24  Am.  R.  455;  Cope- 
land  V.  State,  7  Humph.  (Tenn.) 
479;  State  v.  Cushing,  14  Wash. 
527,  45  Pac.  145;  but  compare.  Marts 
V  State,  26  Ohio  St.  162;  People  v. 
Rodawald,  177  N.  Y.  408,  70  N.  E.  1; 
Henderson  v.  State,  12  Tex.  525. 

="  Williams  v.  Fambro,  30  Ga.  232; 
State  V.  Ellis,  30  Wash.  369,  70  Pac. 
963;  State  v.  Robinson,  52  La.  Ann. 
616,  27  So.  124. 

=•"  People  V.  Anderson,  39  Cal.  703 
State  V.  Turpin,  77  N.  Car.  473 
Moriarty  v.  State,  62  Miss.  654 
State  v.  Riddle,  20  Kans.  711. 

=*"  Harrison  v.  Commonwealth,  79 
Va.  374,  52  Am.  R.  634;  Childers  v. 
State,  30  Tex.  App.  160,  16  S.  W. 
903,  28  Am.  St.  899. 

^^^  Commonwealth  v.  Hoskins,  35 
Ky.  L.  R.  284,  35  S.  W.  284. 

^'^^  State  V.  Chandler,  5  La.  Ann. 
489,  52  Am.  Dec.  599;  State  v.  Field, 
14  Me.  244,  31  Am.  Dec.  52;  Com- 
monwealth V.  Hilliard,  2  Gray 
(Mass.)  294;  State  v.  Thawley,  4 
Har.   (Del.)   562. 


335  CHARACTER    OF    ACCUSED.  [§    3039. 

Thus,  where  defendant  sought  to  prove  that  the  deceased  was  an 
"overbearing,  turbulent,  and  impetuous  man,"  it  was  held  not  ad- 
missible.^^- And  evidence  to  prove  the  vicious  temper,  nature,  and 
disposition  of  the  deceased  has  been  held  not  admissible.^'^^  In  these 
cases,  however,  the  evidence  was  sought  to  be  introduced  in  the  first 
instance  or  there  was  no  other  showing  of  self-defense.^^* 

§  3039.  Evidence  as  to  character — Of  accused. — It  is  the  general 
rule  that  the  defendant's  good  character  or  reputation  for  peace  and 
quiet  is  admissible  in  his  favor.^^^  But  the  evidence  must  be  con- 
fined, in  general,  to  the  trait  involved  in  the  crime  charged,^-"'''  and 
it  has  been  held  that  the  defendant  cannot  show  his  good  character 
and  conduct  subsequent  to  the  commission  of  the  crime.^^^  Thus,  it 
has  been  held  that  although  evidence  of  the  previous  good  char- 
acter for  peace  and  quietness  of  the  defendant  is  admissible,  evidence 
of  his  previous  moral  character  is  not.^^^  And  whether  the  accused 
is  a  brave  man  or  a  coward  has  been  held  to  be  immaterial  on  a  trial 
for  murder.^^^  So  it  has  been  held  that  testimony  as  to  the  reputa- 
tion for  "truth,  honesty,  and  integrity"  of  defendant,  who  was  a  wit- 
ness in  his  own  behalf,  should  be  excluded  where  those  traits  of  char- 
acter were  not  questioned  by  the  prosecution;^®**  and  that  one  ac- 
cused of  aiding  and  abetting  a  murder  in  pursuance  of  a  conspiracy 

^==Spivey  v.    State,   58   Miss.   858;  State  v.  Howell,  100  Mo.  628,  14  S. 

Wright  v.  State,  17  Tenn.  342.  W.  4;    State  v.   Schleagel,  50  Kans. 

=="Brucker  v.  State,  19  Wis.  539.  325,  31  Pac.  1105;   Wesley  v.  State, 

^=*That  there  must  be  some  show-  37  Miss.  327,  75  Am.  Dec.  62;    Mas- 

ing  of  self-defense,  see,  McKeone  v.  ton  v.  State,  83  Miss.  647,  36  So.  70; 

People,  6  Colo.  346;  Jones  v.  People,  Hall  v.  State,  132  Ind.  317,  31  N.  E. 

6  Colo.  452,  45  Am.  R.  526;    David-  536. 

son  v.  People,  4  Colo.  145;   Bond  v.  ==«  Walker  v.   State,  91  Ala.   76,   9 

State,  21  Fla.  738;   Roten  v.  State,  So.  87;   Demaree  v.  Commonwealth, 

31    Fla.    514,    12    So.    910;    State   v.  26  Ky.  L.  R.  507,  82  S.  W.  231;  note 

Morey,    25    Ore.    241,    36    Pac.    573;  in  103  Am.  St.  897. 

State  V.  Pearce,  15  Nev.  188;   Doyal  ="  Moore  v.  State,  96  Tenn.  209,  33 

V.  State,  70  Ga.  134;  Drake  v.  State,  S.  W.  1046;  see  also,  White  v.  State, 

75  Ga.  413;   Abbott  v.  People,  86  N.  Ill  Ala.  92,  21  So.  330. 

Y.  460;  State  v.  Sumner,  130  N.  Car.  ^^nValker  v.  State,  102  Ind.  502,  1 

718,  41  S.  E.  803.  N.  E.  856. 

■■'•'•'' Commonwealth  v.  Winnemore,  1  •'^'■'Keyes  v.  State,  122  Ind.  527,  23 

Brewst.    (Pa.)    356;   Basye  v.  State,  N.  B.  1097. 

45  Neb.  261,  63  N.  W.  811;   State  v.  ="«  People  v.   Cowgill,  93  Cal.  596,. 

Gather,  121  Iowa  106,  96  N.  W.  722;  29  Pac.  228. 


§  3040.]  HOMICIDE.  33G 

cannot  prove  the  good  character  of  his  co-defendants.^^^  After  the 
defendant  has  put  his  character  in  evidence,  the  state  may  show  his 
bad  reputation  with  reference  to  the  same  traits  of  character.^®^  So, 
it  lias  been  held  competent  for  the  state  to  show  his  character  when 
drinking,  when  the  homicide  was  committed  by  him  while  drinking. ^''^ 
But  it  has  been  held  that  testimony  of  the  good  character  of  the  ac- 
cused cannot  be  met  by  evidence  that  he  had  formerly  committed  an 
act  of  violence  against  another  person,  at  another  place,  and  under 
different  circumstances.^*'*  It  has  also  been  held  that  the  temper  of 
the  prisoner  cannot  be  considered,^''^  and  that  evidence  that  the  ac- 
cused had  a  nervous  temperament,  and  was  excitable  and  eccentric,  is 
not  admissible.^''*' 

§  3040.  Evidence  of  habits  and  disposition. — Certain  habits  of  the 
deceased  may  usually  be  shown  under  circumstances  similar  to  those 
under  which  his  character  or  reputation  for  peace  or  violence  may  be 
shown. ^^^  Thus,  it  is  often  competent  to  prove  that  the  deceased  was 
in  the  habit  of  going  armed  or  carrying  deadly  weapons.^"^  But  it 
must  usually  be  made  to  appear  that  the  defendant  had  Imowledge 
of  such  habit,^"^  and  the  evidence  as  to  habit  must  not  be  too  re- 

^"Omer  v.  Commonwealth,  95  Ky.  cause  the  defendant  did   not  know 

353,  25  S.  W.  594.  of  it. 

^"2  Vol.  I,  §  168.  ^"^  Wiley  v.  State,  99  Ala.  146,  13 

^s^Cook    V.    State,    (Fla.)     35    So.  So.   424;    Cawley  v.   State,  133  Ala. 

665;   but  see.  State  v.  McDaniel,  68  128,  32   So.  227;   Naugher  v.   State, 

S.  Car.  304,  47  S.  E.  384.  116   Ala.   463,   23   So.   26;    People  v. 

^''^Brownell    v.    People,    38    Mich.  Howard,  112  Cal.  135,  44  Pac.  464; 

732;    see  also.   State   v.   Evans,   158  Garner  v.  State,  31  Fla.  170,  12  So. 

Mo.  589,  59  S.  W.  994.  638;  Riley  v.  Commonwealth,  15  Ky. 

^®  State    v.    Lipsey,    3    Dev.     (N.  L.    R.    46,    22    S.    W.    222;    State   v. 

Car.)  485.  Yokum,    14    S.    Dak.    84,    84    N.    W. 

=<=«  Commonwealtn    v.    Cleary,    148  389;    State   v.    Crawford,    31   Wash. 

Pa.  26,  23  Atl.  1110.  260,  71  Pac.  1030.     It  has  been  held 

=°'  See,    State    v.    Ellis,    30    Wash,  competent  to  show  that  such  was  his 

369,  70  Pac.  963;  White  v.  State,  100  reputation    and    that    he    was    nick- 

Ga.    659,    28    S.    E.    423;     State    v.  named  "Draws"  from  his  readiness 

Yokum,  14  S.  Dak.  84,  84  N.  W.  389;  to  draw  weapons.     State  v.  Thomp- 

People   v.    Grimes,    132    Cal.    30,    64  son,   109  La.  Ann.  296,  33  So.  320; 

Pac.    101;     in    Phipps    v.    State,    34  see  also,  Glenewinkel  v.  State,  (Tex. 

Tex.  Cr.  App.  560,  31  S.  W.  397,  it  Cr.  App.)  61  S.  W.  123. 

was  held  that  evidence  of  the  par-  =«''' Sims  v.    State,   139   Ala.   74,   36 

ticular    habit    there    sought    to    be  So.  138;  People  v.  Howard,  112  Cal. 

shown  could  not  be  introduced  be-  135,  44  Pac.  464;  Garner  v.  State,  31 


■QO'V 


HABITS    AND    DISPOSITIOX. 


[§ 


50-iO. 


mote."'"  So,  in  a  case  where  there  was  no  question  of  self-defense 
or  the  like,  and  the  defendant's  claim  was  that  the  deceased  had 
committed  suicide,  evidence  that  the  deceased  was  in  the  habit  of 
carrying  a  pistol  was  held  not  admissible."^  And  it  has  been 
held  that  while  the  state  may  show  the  deceased  was  vmarmed  at  the 
time  of  the  homicide,  it  cannot  show  in  the  first  instance  that 
he  was  in  the  habit  of  going  unarmed  and  had  refused  to  arm  him: 
self.^^-  But  such  evidence  has  been  held  admissible  in  rebuttal."' 
Evidence  that  the  deceased  was  a  drinking  man  is  generally  im- 
material and  incompetent;"*  but  his  character  and  disposition  may 
be  material  and  competent,  as,  for  instance,  in  some  cases  where  the 
homicide  was  committed  under  such  circumstances."^  Evidence  may 
be  introduced  by  the  accused  to  show  that  the  deceased  was  of  a  mel- 
ancholy temperament  and  inclined  to  suicide,^^''  where  there  is  evi- 
dence to  support  that  theory.  And  the  prosecution,  in  rebuttal,  may 
introduce  testimony  showing  the  happy  disposition  and  good  health, 
the  social  condition  and  j)leasant  surroundings  of  the  deceased,  to 
establish  the  absence  of  a  suicidal  intent."'^  So,  where  the  defendant 
in  a  prosecution  for  killing  his  father-in-law  claimed  that  shortly 
prior  to  the  homicide  he  had  discovered  the  deceased  in  adultery  with 


Fla.  170,  12  So.  638;  PMpps  v.  State, 
34  Tex.  Cr.  App.  560,  31  S.  W.  397. 

=■"  People  v.  Barthleman,  120  Cal. 
7,  52  Pac.  112. 

='^  State  V.  Fitzgerald,  130  Mo.  407, 
32  S.  W.  1113;  overruling.  State  v. 
Ludwig,  70  Mo.  412.  In  the  syllabus 
in  the  S.  W.  Rep.  this  seems  to  be 
erroneously  stated  as  applying  to 
the  defendant  instead  of  the  de- 
ceased. So  it  has  been  held  incompe- 
tent for  the  defense  to  show  that 
the  deceased,  who  died  from  a  pistol 
wound,  was  an  expert  with  a  pistol. 
State  v.  Punshon,  124  Mo.  448,  27  S. 
W.  1111. 

=>■-  People  V.  Powell,  87  Cal.  348,  25 
Pac.  481;  see  also,  McCandless  v. 
State,  42  Tex.  Cr.  App.  58,  57  S.  W. 
672,  to  the  effect  that  the  state  can- 
not show  this  even  in  rebuttal  of 
evidence  that  he  did  draw  or  at- 
tempt to  draw  a  weapon  at  the  time 


of  the  homicide.  Held  also  that  the 
accused  could  not  show  it,  in  State 
V.  Chevallier,  36  La.  Ann.  81. 

=^=  State  V.  Mims,  36  Ore.  315,  61 
Pac.  888;  People  v.  Grimes,  132  Cal. 
30,  64  Pac.  101. 

^'*  Seaborn  v.  Commonwealth,  25 
Ky.  L.  R.  2203,  80  S.  W.  223;  see 
also.  State  v.  McDaniel,  68  S-  Car. 
304,  47  S.  E.  384. 

="^  State  V.  Beird,  118  Iowa  474,  92 
N.  W.  694 ;  Lewallen  v.  State,  6  Tex. 
App.  475;  see  also.  State  v.  Ellis,  30 
Wash.  369,  70  Pac.  963;  State  v. 
Hunter,  118  Iowa  686,  92  N.  W.  872; 
Cook  V.  State,  (Fla.)  35  So.  665. 

='"'Boyd  V.  State,  14  Lea  (Tenn.) 
161;  Blackburn  v.  State,  23  Ohio  St. 
146;  Hall  v.  State,  132  Ind.  317,  31 
N.  E.  536. 

^■'  State  v.  Lentz,  45  Minn.  177,  47 
N.  W.  720. 


Vol.  4  Elliott  Ev.— 22 


§  3041.]  HOMICIDE.  338 

the  defendant's  wife,  that  fact  being  competent  for  the  purpose  of  re- 
ducing the  homicide  to  murder  in  the  second  degree,  it  was  held  that 
the  defendant  was  entitled  to  show  that  deceased  was  a  man  of  un- 
chaste and  immoral  habits,  for  the  purpose  of  proving  that  he  would 
be  likely  to  commit  the  offense  alleged.' 


378 


.  §  3041.  Evidence  as  to  self-defense. — Where  a  homicide  occurs 
under  such  circumstances  that  it  is  doubtful  whether  the  act  was 
committed  maliciously  or  from  a  well-grounded  apprehension  of 
danger,  testimony  showing  that  the  deceased  was  turbulent,  violent, 
and  desperate  is  proper,  in  order  to  determine  whether  the  accused 
had  reasonable  cause  to  apprehend  great  personal  injury  to  himself."'* 
But  evidence  of  the  violent  character  of  the  deceased  is  not  admissible 
to  show  reasonable  ground  for  apprehensions  without  some  proof  that 
the  killing  was  in  self-defense.^^"  Thus,  in  the  absence  of  proof  of 
any  assault  or  hostile  demonstration  by  the  deceased  evidence  of  his 
dangerous  character  and  disposition  has  often  been  held  not  to  be  ad- 
missible.3*^  -q^I  jt  has  been  held  that  evidence  of  the  defendant's 
reputation  for  peace  or  violence  is  to  be  considered  by  the  jury  in 
doubtful  cases  in  determining  who  was  the  assailant.^^^  Evidence  of 
previous  threats  of  the  deceased  against  the  accused  is  not  admissible, 
unless  there  is  some  proof  of  an  attack  or  overt  hostile  act  showing 
an  intent  to  carry  the  threats  into  excution.^^^     It  has  sometimes 

^■^  Orange  v.  State,  (Tex.  Cr.  App.)  ^'^  Lang  v.  White,  84  Ala.  1,  4  So. 

83  S.  W.  385.  193,  5  Am.  St.  324;  Davidson  v.  Peo- 

3^9  Williams  v.   State,  74  Ala.  18;  pie,  4  Colo.  145;   Roten  v.  State,  31 

Garner  v.  State,  28  Fla.  113,  9  So.  Fla.  514,  12  So.  910;  Doyal  v.  State, 

835,  29  Am.  St.  232;    State  v.  Gra-  70  Ga.   134;    Cannon  v.  People,  141 

ham,   61   Iowa   608,   16   N.  W.    743;  111.    270,    30    N.    E.    1027;    State    v. 

State  v.  Downs,  91  Mo.  19,  3  S.  W.  Stewart,  47  La.  Ann.  410,  16  So.  S45; 

219;  Basye  v.  State,  45  Neb.  261,  63  People  v.  Hess,  8  App.  Div.  (N.  Y.) 

N.   W.    811;    Nichols    v.    People,    23  143,  40  N.  Y.  S.  486;  West  v.  State, 

Hun  (N.  Y.)  165;  Marts  v.  State,  26  18  Tex.  App.  640;    Smith  v.  United 

Ohio  St.  162;  Moore  v.  State,  15  Tex.  States,  1  Wash.  T.  262. 

App.  1;  Smith  v.  United  States,  161  =='=  State  v.  Gushing,  14  Wash.  527, 

U.  S.  85,  16  Sup.  Ct.  483,  and  other  45    Pac.    145,    53    Am.    St.    883,    and 

authorities  cited  in  ante  section  on  other  authorities   cited,    §    3038,   on 

character  of  deceased.  character  of  the  deceased. 

==*"  Bowles   V.    State,    58    Ala.    335;  =''*^  Hughey    v.    State,    47    Ala.    97; 

State    v.    Claude,    35    La.    Ann.    71;  People  v.  Campbell,  59  Cal.  243,  43 

State  v.  Harris,  59  Mo.  550;  People  Am.  R.  257;   Steele  v.  State,  33  Fla. 

v.  Hess,  8  App.  Div.   (N.  Y.)  143,  40  348,  14  So.  841;  State  v.  Stewart,  47 

N.  Y.  S.  486.  La.  Ann.   410,  16  So.   945;    State  v. 


339 


SELF-DEFKXSE 


[§    3011. 


been  stated,  in  general  terms,  that  evidence  of  tlireats  uneoinniimi- 
cated  to  the  defendant  is  not  admissible.-"*  Tims,  it  has  been  held 
that  threats  of  deceased  against  the  accused  are  not  admissible  in 
evidence,  until  it  has  been  proved  that  the  accused  had  been  advised 
of  them.^^^  But  in  these  cases  there  was  no  pretense  of  self-defense ; 
and  it  is  generally  held  that  evidence  of  uncommunicated  threats  bv 
deceased  is  admissible  in  a  proper  case  to  show  his  mental  attitude,^'*'' 
and  determine  who  was  the  aggressor,^"  And  in  a  recent  case  it  is 
said  that  uncommunicated  threats,  according  to  the  modern  and 
better  reasoned  cases,  are  admissible  in  three  instances,  namely,  to 
show  who  began  the  affra}-,  to  corroborate  evidence  of  communicated 
threats,  and  to  show  the  attitude  of  the  deceased.^^^  So,  where  self- 
defense  is  pleaded  it  is  generally  held  that  the  accused  may  testify 
in  such  cases  as  to  his  belief  that  his  life  was  in  danger.^''^   But  the 


Kenyon,  18  R.  I.  217,  2C  Atl.  199; 
West  V.  State,  18  Tex.  App.  640; 
People  V.  Halllday,  5  Utah  467,  17 
Pac.  118;  State  v.  Spencer,  160  Mo. 
118,  60  S.  W.  1048,  83  Am.  St.  463; 
note  in  89  Am.  St.  708. 

^Vann  v.  State,  83  Ga.  44,  9  S.  E. 
945. 

^=  State  V.  McCoy,  29  La.  Ann.  593; 
see  also.  State  v.  Zellers,  7  N.  J.  L. 
220;  State  v.  Vaughn,  22  Nev.  285,  39 
Pac.  733;  State  v.  Warren,  1  Marv. 
(Del.)  487,  41  Atl.  190;  State  v. 
Lyons,  7  Idaho  530,  64  Pac.  236; 
Ellis  V.  State,  152  Ind.  327,  52  N.  E. 
82. 

^^  State  V.  Evans,  33  W.  Va.  417,  10 
S.  E.  792. 

^"Roberts  v.  State,  68  Ala.  156; 
People  v.  Tamkin,  62  Cal.  468;  Hol- 
ler V.  State,  37  Ind.  57,  10  Am.  R. 
74;  State  v.  Felker,  27  Mont.  451,  71 
Pac.  668;  State  v.  Turpin,  77  N.  Car. 
473,  24  Am.  R.  455;  State  v.  Tartar. 
26  Ore.  38,  37  Pac.  53;  State  v.  Gush- 
ing, 14  Wash.  527,  45  Pac.  145;  Wig- 
gins V.  People,  93  U.  S.  465;  State  v. 
Evans,  33  W.  Va.  417,  10  S.  E.  792; 
89  Am.  St.  709,  note;  but  compare. 
People  V.  Arnold,  15  Cal.  476;  At- 
kins V.  State,  16  Ark.  568;   Coker  v. 


State,  20  Ark.  53.  As  already  shown, 
however,  there  must  be  a  claim  of 
self-defense  and  some  evidence 
thereof. 

=^"' Territory  v.  Hall,  10  N.  Mex. 
545,  62  Pac.  1083;  see  also,  as  to 
their  admissibility  to  corroborate 
communicated  threats.  State  v. 
Helm,  92  Iowa  540,  61  N.  W.  246; 
State  V.  Brown,  22  Kans.  222;  Cor- 
nelius v.  Commonwealth,  54  Ky.  539; 
Levy  V.  State,  28  Tex.  App.  203,  12 
S.  W.  596,  19  Am.  St.  826. 

^"Duncan  v.  State,  84  Ind.  204; 
Williams  v.  Commonwealth,  90  Ky. 
596,  14  S.  W.  595;  Commonwealth  v. 
Woodward,  102  Mass.  155;  State  v. 
Austin,  104  La.  Ann.  409,  29  So.  23; 
Upthegrove  v.  State,  37  Ohio  St. 
662;  but  compare,  Mann  v.  State,  134 
Ala.  1,  32  So.  704 ;  State  v.  Gonce,  87 
Mo.  627.  It  has  also  been  held  that 
he  may  state  what  he  thought  the 
deceased  intended  to  do.  Wallace  v. 
United  States,  162  U.  S.  466,  16  Sup. 
Ct.  850;  Taylor  v.  People,  21  Colo. 
426,  42  Pac.  652. 

==«  Hawkins  v.  State,  25  Ga.  207,  71 
Am.  Dec.  166;  Gardner  v.  State,  90 
Ga.  310,  17  S.  E.  86,  35  Am.  St.  202; 
Smith  v.  Commonwealth,  23  Ky.  L. 


§    3041.]  HOMICIDE.  343 

opinions  of  third  persons  as  to  what  the  deceased  intended  to  do,^''" 
or  that  the  defendant  was  in  imminent  danger  and  had  just  cause 
for  apprehension  of  great  bodily  harm^^^  are  incompetent.  Threats 
made  by  the  deceased,  a  short  time  before  the  commission  of  the 
homicide,  indicating  an  angry  and  revengeful  spirit  toward  the  ac- 
cused and  a  determination  to  do  violence  to  his  person,  which  were 
communicated  to  the  prisoner  a  short  time  before  the  killing,  arc 
admissible  evidence  in  his  favor,^^-  where  there  is  any  evidence 
whatever  fairly  tending  to  support  the  issue  of  self-defense,  and, 
possibly  in  other  cases  as  well.  On  the  issue  of  self-defense,  the  de- 
fendant, as  stated  in  another  section,  may  show  that  deceased  car- 
ried deadly  weapons,"''^  and  was  in  the  habit  of  so  doing  as  the  de- 
fendant knew.  So  on  the  issue  of  self-defense,  defendant  may  show 
that  deceased  had  time  and  again  assaulted  him,^^*  or  the  like,^^^ 
at  least  where  the  evidence  as  to  self-defense  leaves  the  matter  in 
doubt  or  a  sufficient  preliminary  showing  has  been  otherwise  made.^''*' 
And  where  self-defense  is  set  up  to  justify  a  murder,  the  declarations 
of  the  deceased,  explanatory  of  accompanying  acts,  are  admissible  as 
part  of  the  res  gestae.^^^  It  has  been  held  that  one  indicted  for 
manslaughter  may  prove  the  purpose,  as  well  as  the  reasonable  cause, 
of  the  fatal  blow  alleged  by  him  to  have  been  struck  in  self-defense.^*** 

R.  2271,  67  S.  W.  32;  State  v.  Scott,  Wallace  v.  United  States,  162  U.  S. 

26  N.  Car.  409,  42  ^m.  Dec.  148.  466,  16  Sup.  Ct.  859. 

^'''Keener  v.  State,  18  Ga.  194,  63  ^'^  State  v.  Graham,  61  Iowa  608, 

Am.  Dec.  269;    State  v.  Rhoads,  29  16  N.  W.  743. 

Ohio  St.  171;   State  v.  Summers.  36  ^'-^  State  v.  Graham,  61  Iowa  608, 

S.  Car.  479,  15  S.  E.  369;   see  also,  16   N.   W.   743;    State  v.    Sorter,   52 

Smith  v.  Commonwealth,  23  Ky.  L.  Kans.  531,  34   Pac.  1036;    Enlow  v. 

R.    2271,   67   S.   W.   32;    Gregory   v.  State,  154  Ind.  664,  57  N.  E.  539. 

State,  (Tex.  Cr.  App.)  48  S.  W.  577;  =»  Gunter  v.  State,  111  Ala.  23,  20 

State  V.  Brooks,  39  La.  Ann.  817,  2  So.    632,    56   Am.    St.    17;    Common- 

So.  498;   Lowman  v.  State,  109  Ga.  wealth  v.  Booker,  25  Ky.  L.  R.  1025, 

501,    34    S.    E.    1019;    but    compare,  76  S.  W.  838;  People  v.  Hecker,  109 

Stewart  v.  State,  19  Ohio  302,  53  Am.  Cal.  451,  42  Pac.  307,  30  L.  R.  A.  403; 

Dec.  426;   Thomas  v.  State,  40  Tex.  State  v.   Peterson,   24   Mont.    81,   60 

36.  Pac.  809;  State  v.  Dee,  14  Minn.  35; 

s^=  Powell  V.  State.  52  Ala.  1;  State  People  v.  Taylor,  177  N.  Y.  237,  69 

V.    Scott,   24   Kans.    68;    Jackson   v.  N.  E.  534. 

State,  65  Tenn.  452;  State  v.  Dodson,  ^"^  See,   State  v.   Jefferson,   43   La. 

4  Ore.  64;  State  v.  Abbott,  8  W.  Va.  Ann.  995,  10  So.  199;  State  v.  Smith, 

741;  Harris  v.  State,  72  Miss.  99,  16  164  Mo.  567,  65  S.  W.  270. 

So.   360;    State   v.   Harrod,   102   Mo.  ="  Wilson  v.  People,  94  111.  299. 

590,  15  S.  W.  373;  Allison  v.  United  ^'^'^  Commonwealth     v.     Woodward, 

States,  160  U.  S.  203,  16  Sup.  Ct.  252;  102  Mass.  155. 


341  SELF-DEFEXSE — J  USTIIICATION    Oil   EXCUSE.  [§    3041a. 

But  the  fact  that  defendant,  after  tlie  affray,  requested  a  third  per- 
son to  go  to  the  relief  of  the  deceased,  has  no  tendency  to  prove  that 
the  killing  was  done  in  self-defense.^"^  The  prosecution  may,  of 
course,  introduce  proper  evidence  in  rebuttal.  Thus,  the  state  may 
show  that  the  deceased  did  not  make  threats  as  claimed.^*"*  So,  it 
has  been  held  that  they  may  be  explained,  and  that  it  may  be  shown 
that  his  manner  was  not  threatening.*"^  It  has  also  been  held  that 
subsequent  friendly  relations  between  the  parties,*"-  or  the  subse- 
quent conduct  and  declarations  of  the  deceased  indicating  his  peace- 
able intentions  may  be  shown,*"^  at  least  when  known  to  the  de- 
fendant.*"* So,  it  has  been  held  that  the  prosecution  may  prove  the 
great  physical  superiority  of  the  accused  over  the  deceased.*"^ 

§  3041a,     Evidence  as  to  self-defense — Justification  or  excuse. — As 

already  intimated,  while  homicide  may  be  justifiable  when  it  is  com- 
mitted, without  malice,  in  the  performance  of  a  legal  duty  or  for  the 
advancement  of  public  justice,  as  where  it  is  committed  in  making  a 
lawful  arrest,  or  in  apprehending  a  criminal  escaping  from  prison, 
or  in  preventing  the  commission  of  a  felony,**"'  yet  the  question  of 
justification  is  usually  determined  by  the  consideration  as  to  whether 
the  homicide  was  necessary  or  apparently  necessary  to  accomplish 
such  lawful  purpose  or  legal  duty.  So,  in  determining  whether  the 
homicide  was  excusable  as  committed  in  self-defense  the  rule  is  sub- 
stantially the  same.  If  committed  in  the  necessary  defense  of  the 
defendant's  person  or  habitation  or  in  necessary  defense  of  one  to 
whom  he  owes  the  duty  of  protection,  it  is  a  good  defense  whether 
it  be  called  merely  excusable  or  justifiable.*"^     Indeed,  the  rule  laid 

=»^  State  v.  Roberts,  G3  Vt.  139,  21  ^°«  See,  State  v.  Phillips,  119  Iowa 

Atl.  424.  652,  94  N.  W.  229,  67  L.  R.  A.  292, 

*"'' Maxwell  v.  State,  129  Ala.  48,  29  and   extended   note   on   the   general 

£o.  981.  subject;    also  elaborate  note   in,   67 

*"'■  Myers  v.  State,  37  Tex.  Cr.  App.  L.  R.  A.  529,  et  seq. 

331,  39  S.  W.  938.  *"'  It    has    been    held    that,   wh 

*"-  Naugher  v.  State,  116  Ala.  463,  the   homicide    is   committed    in   de- 

23  So.  26.  fense   of    another,    any    evidence    is 

*"^  State  V.  ChafRn,  56  S.  Car.  431,  competent  to  establish  justification 

ZS  S.  E.  454.  that  would  have  been  competent  if 

*<"  Jimmerson  v.  State,  133  Ala.  18,  the  act  had  been  committed  in  de- 

32  So.  141;  Rush  v.  State,  (Tex.  Cr.  fense   of   the   defendant's  own   per- 

App.)    76    S.    W.    927;    Johnson    v.  son.    People  v.  Curtis,  52  Mich.  616, 

State,  22  Tex.  App.  206,  2  S.  W.  609.  18    N.    W.    385;    see    also.    State    v. 

«=  Hinch  v.  State,  25  Ga.  699.  Felker,  27  Mont.  451,  71  Pac.  668; 


§  3041a.] 


HOMICIDE. 


343 


down  in  some  of  the  older  cases  in  regard  to  the  absolute  necessit}^ 
of  the  act  and  the  subject  of  "reti-eating  to  wall"  as  against  a  mur- 
derous assault,  where  to  do  so  would  apparently  endanger  life  or  limb 
and  be  unreasonable,  no  longer  prevails,  if  it  ever  did  obtain,  in  most 
jurisdictions.*"*  It  is  said  in  one  case  that  "self-defense,  or  killing 
another  in  defense  of  one's  own  person,  is  mostly  where  one  is  sud- 
denly assailed  by  another  without  fault  on  his  part,  and  under  such 
circumstances  as  to  give  him  just  and  reasonable  ground  to  believe 
that  he  is  in  danger  of  losing  his  life  or  suffering  some  great  bodily 
harm,  enormous  bodily  harm.  In  such  case  the  assailed  need  not  wait 
for  the  apprehended  injury  by  his  adversary,  but  may  take  his  life 
if  necessary  to  protect  his  own  person."*"^  It  is  not  absolutely  es- 
sential that  the  danger  apprehended  should  be  actual,  positive  and  im- 
minent so  as  to  make  the  homicide  absolutely  necessary.  If  it  is 
apparent  and  the  defendant  had  reasonable  apprehension  and  ground 


Wood  V.  State.  128  Ala.  27,  29  So. 
557;  State  v.  Austin,  104  La.  4U9, 
29  So.  23;  State  v.  Foster,  (Tenn.) 
49  S.  W.  747;  see  generally  note  in, 
74  Am.  St.  735,  737-740. 

^"^  See,  La  Rue  v.  State,  64  Ark. 
144,  40  S.  W.  466;  People  v.  Lewis, 
117  Cal.  186,  48  Pac.  1088,  59  Am.  St. 
167,  and  note;  Runyan  v.  State,  57 
Ind.  80;  Miller  v.  State,  74  Ind.  1; 
Page  v.  State,  141  Ind.  236,  40  N.  E. 
745;  State  v.  Hatch,  57  Kans.  420, 
46  Pac.  708.  57  Am.  St.  337;  Mc- 
Clurg  v.  Commonwealth,  (Ky.)  36 
S.  W.  14;  Wilson  v.  Commonwealth, 
(Ky.)  63  S.  W.  738;  Bohannon  v. 
Commonwealth,  8  Bush  (Ky.)  482, 
8  Am.  Dec.  474;  State  v.  Robert- 
son. 50  La.  Ann.  92,  23  So.  9,  69  Am. 
St.  393;  McCall  v.  State,  (Miss.) 
29  So.  1003;  State  v.  Hudspeth.  150 
Mo.  12,  51  S.  W.  483;  State  v.  Bart- 
lett.  170  Mo.  658,  71  S.  W.  148;  State 
V.  Rolla,  21  Mont.  582,  55  Pac.  523; 
State  v.  Kennedy,  7  Nev.  374;  Er- 
win  V.  State,  29  Ohio  St.  186.  23  Am. 
R.  733;  Kirk  v.  Territory,  10  Okla. 
46,  60  Pac.  797;  State  v.  Sherman, 
16  R.  L  631;  State  v.  Carter,  15 
Wash.    121,    45    Pac.    745;    State    v. 


Clark,  51  W.  Va.  457,  41  S.  E.  204; 
see  also.  High  v.  State,  26  Tex.  App. 
454,  8  Am.  St.  488;  but  compare, 
Eiland  v.  State,  52  Ala.  322;  Brown 
V.  State,  83  Ala.  33,  3  Am.  St.  685; 
State  V.  Warren,  1  Marv.  (Del.) 
487,  41  Atl.  190;  Snelling  v.  State, 
(Fla.)  37  So.  917;  State  v.  Benham, 
23  Iowa  154,  92  Am.  Dec.  417;  State 
V.  Warner,  100  Iowa  260,  69  N.  W. 
546;   Shorter  v.  People,  2  N.  Y.  193, 

5  Am.  Dec.  286;  People  v.  John- 
son, 139  N.  Y.  358,  34  N.  E.  920; 
People  v.  Constantino,  153  N.  Y.  24, 
47  N.  E.  37;  State  v.  Kennedy,  91 
N.  Car.  572;  Commonwealth  v. 
Breyessee,  160  Pa.  St.  451,  28  Atl. 
646,  40  Am.  St.  729;  State  v.  Sum- 
ner, 55  S.  Car.  32,  74  Am.  St.  707; 
State  V.  Roberts,  63  Vt.  139,  21  Atl. 
424;  Allen  v.  United  States,  164  U. 
S.  492,  17  Sup.  Ct.  154;  but  see, 
Alberty  v.  United  States,  162  U.  S. 
499,  16  Sup.  Ct.  864;  Beard  v.  United 
States,  158  U.  S.  550,  15  Sup.  Ct. 
962;  see  notes  in,  28  Am.  St.  944, 
953;  42  Am.  St.  322;  48  Am.  St.  22; 

6  L.  R.  A.  424;  74  Am.  St.  726. 

^"^  State     v.     Walker,     9      Houst. 
(Del.)  464,  33  Atl.  227. 


343 


SELF-DEFENSE JUSTIFICATION    OK   EXCUSE.  [§    3041a. 


for  the  same  and  for  so  acting  it  will  generally  be  sufficient  to  justify 
or  at  least  excuse  him.*^°  "In  other  words,  he  is  justified  in  acting 
upon  the  facts  as  they  appear  to  him  at  the  time,  and  is  not  to  be 
judged  by  the  facts  as  they  actually  are  or  as  they  appear  to  the 
jury."*"  But,  as  a  general  rule,  only  such  force  should  be  used  as  is 
reasonably  necessary,  or  as  appears  to  be  reasonably  necessary,  and 
when  the  force  of  the  aggressor  is  repelled  and  protection  achieved, 
the  repellant  force  should  cease  and  not  be  continued  until  it  becomes 
unnecessarily   aggressive.*^-     The  question  of  the  apparent  danger 


""Many  of  the  authorities  to  this 
effect  are  cited  and  reviewed  in  the 
note  in,  74  Am.  St.  717,  et  seq.  And 
we  cite  only  a  few  of  the  leading 
or  more  recent  cases.  Smith  v. 
State,  59  Ark.  132,  26  S.  W.  712,  43 
Am.  St.  20;  Hubbard  v.  State,  37 
Fla.  156,  20  So.  235;  Finder  v.  State, 
27  Fla.  370,  8  So.  837,  26  Am.  St. 
75;  Enlow  v.  State,  154  Ind.  664, 
57  N.  E.  539;  Campbell  v.  People, 
16  111.  17,  61  Am.  Dec.  49;  Cockrill 
v.  Commonwealth,  95  Ky.  22,  23  S. 
W.  659;  McCrary  v.  State,  (Miss.) 
25  So.  671;  State  v.  Hough,  (N. 
Car.)  50  S.  E.  709;  Logne  v.  Com- 
monwealth, 38  Pa.  St.  265,  80  Am. 
Dec.  481;  Norris  v.  State,  (Tex.  Cr. 
App.)  61  S.  W.  493;  Brown  v.  Com- 
monwealth, 86  Va.  466.  10  S.  E.  745; 
Schmidt  v.  State,  (Wis.)  102  N.  W. 
1071;  see  also,  6  L.  R.  A.  424,  note; 
66  L.  R.  A.  367,  note;  67  L.  R.  A. 
304,  note.  As  to  application  of  this 
rule  in  case  of  resisting  an  officer 
who  abuses  his  authority  and  uses 
unnecessary  force,  see  note  in,  66  L. 
R.  A.  366-370,  375,  et  seq. 

"^25  Am.  &  Eng.  Ency.  of  Law 
(2nd  ed.)  260,  261;  see  also,  Swain 
V.  State,  (Tex.  Civ.  App.)  86  S.  W. 
35;  State  v.  Reed,  53  Kans.  767,  37 
Pac.  174,  42  Am.  St.  322;  People  v. 
Lennon,  71  Mich.  298,  38  N.  W.  871, 
15  Am.  St.  259;  Smith  v.  State,  59 
Ark.  132,  26  S.  W.  712,  43  Am.  St. 


20;  Watkins  v.  United  States,  1  Ind. 
Ter.  364,  41  S.  W.  1044. 

"^  See,  generally,  Noles  v.  State, 
26  Ala.  31,  62  Am.  Dec.  711;  Askew 
V.  State,  94  Ala.  4,  10  So.  657,  33  Am. 
St.  83;  People  v.  Griner,  124  Cal.  19, 
56  Pac.  625;  Ray  v.  State,  15  Ga. 
223;  Davis  v.  People,  88  III.  350; 
Smith  v.  State,  142  Ind.  288,  41  N.  E. 
595;  State  v.  Thompson,  9  Iowa  188, 
74  Am.  Dec.  342;  Amos  v.  Common- 
wealth, (Ky.)  28  S.  W.  152;  Ruloff 
v.  People,  45  N.  Y.  213;  Shorter  v. 
State,  2  N.  Y.  193,  51  Am.  Dec.  286; 
State  v.  Harper,  149  Mo.  514,  51  S. 
W.  89;  State  v.  Stockton,  61  Mo. 
382;  Blake  v.  State,  3  Tex.  App. 
581;  Byrd  v.  Commonwealth,  89  Va. 
536,  16  S.  E.  727;  State  v.  Zeigler,  40 
W.  Va.  593,  21  S.  E.  763;  note  in, 
74  Am.  St.  731,  et  seq.  As  it  is 
not  within  the  scope  of  this  work 
to  treat  the  substantive  law  of 
homicide  further  than  may  be 
proper  or  necessary  in  order  to  un- 
derstand the  rules  of  evidence  and 
their  application  in  such  cases,  no 
attempt  has  been  made  to  fully 
treat  the  subject  of  self-defense  or 
other  defenses  of  justification  or 
excuse,  but  a  general  view  of  some 
of  the  leading  features  of  the  sub- 
ject is  presented  in  this  section, 
and  the  authorities  cited  with  the 
annotations  referred  to  will  furnish 
a  fairly  comprehensive  view  of  the 
subject. 


5042.] 


HOMICIDE. 


34. 


and  reasonable  necessity  for  the  act  depends  largely  upon  the  siir- 
roimding  circumstances  and  whether  the  accused  was  justified  or 
excused  in  the  particular  case  and  committed  the  act  in  self-defense 
is  to  be  determined  by  the  jury.*^^  As  already  shown,  facts  not 
known  to  the  defendant  may  sometimes  be  admissible  for  certain  pur- 
poses, but  they  are  not  admissible,  as  a  general  rule  at  least,  to  show 
his  apprehension  of  danger.'*^^* 


§  3042.  Evidence  as  to  other  defenses. — The  defendant,  as  a  gen- 
eral rule,  is  entitled  to  introduce  any  competent  evidence  tending 
to  establish  his  theory  of  the  case,^^*  but  it  has  been  held  that  when 
he  relies  solely  on  one  particular  defense  he  cannot  introduce  evi- 
dence in  no  way  relevant  thereto.*^^  He  may  generally  show  his 
physical  as  well  as  his  mental  condition  at  the  time  of  the  alleged 
offense,*^"  and  that  his  purpose  or  conduct  was  lawful.*^^  So,  in  or- 
der to  reduce  the  grade  of  the  offense  he  may  usually  introduce 
proper  evidence  to  show  provocation  or  that  he  acted  in  the  heat  of 
passion  without  cooling  time.*"  He  may  show  that  the  killing  was 
accidental.*"     So,  he  may  introduce  proper  evidence  to  support  the 


"^Jackson  v.  State,  66  Miss.  89, 
5  So.  690,  14  Am.  St.  542;  State  v. 
Dierberger,  96  Mo.  666,  10  S.  W. 
168,  9  Am.  St.  380;  Oliver  v.  State, 
17  Ala.  587;  Conraddy  v.  People,  5 
Park.  Cr.  Cas.  (N.  Y.)  234;  see  also, 
State  V.  Jones,  (N.  J.)  60  Atl.  396; 
Ringer  v.  State,  (Ark.)  85  S.  W. 
410;  State  v.  Golden,  113  La.  Ann. 
791,  37  So.  757. 

413*  People  v.  Cook,  39  Mich.  236, 
33  Am.  R.  380. 

"*Utzman  v.  State,  32  Tex.  Cr. 
App.  426,  24  S.  W.  412. 

'■'=  State  V.  Gosey,  111  La.  Ann.  616, 
35  So.  786;  Brittain  v.  State,  (Tex. 
Cr.  App.)  40  S.  W.  297;  Manning  v. 
State,  79  Wis.  178,  48  N.  W.  209. 

"''Sage  V.  State,  91  Ind.  141;  see 
also,  Enlow  v.  State,  154  Ind.  664,  57 
N.  E.  539. 

*"  See,  Alexander  v.  State,  118  Ga. 
26,  44  S.  E.  851;  State  v.  Welch,  22 
Mont.    92,    55    Pac.    927;    Massie   v. 


Commonwealth,  15  Ky.  L.  R.  562,  24 
b.  W.  611;  State  v.  Hall,  132  N.  Car. 
1094,  44  S.  E.  553;  State  v.  Prater,  52 
W.  Va.  132,  43  S.  E.  230;  see  also, 
Tesney  v.  State,  77  Ala.  33;  Schlem- 
mer  v.  State,  51  N.  J.  L.  23,  15  Atl. 
836. 

"8Maher  v.  People,  10  Mich.  212, 
81  Am.  Dec.  781;  State  v.  Brown, 
181  Mo.  192,  79  S.  W.  Ill;  Thomas 
v.  State,  42  Tex.  Cr.  App.  386,  56  S. 
W.  70;  Cheek  v.  State,  35  Ind.  492; 
Turner  v.  State,  (Tex.  Cr.  App.)  46 
S.  W.  830;  People  v.  Webster,  139  N. 
Y.  73,  34  N.  E.  730.  Evidence  of  in- 
toxication may  be  admissible.  State 
V.  Agnew,  10  N.  J.  L.  J.  165;  Willis 
V.  Commonwealth,  32  Gratt.  (Va.) 
929;  State  v.  Robinson.  20  W.  Va. 
713,  43  Am.  R.  799;  but  compare. 
State  V.  Sneed,  88  Mo.  138. 

"^  State  v.  Wright,  112  Iowa  436, 
84  N.  W.  541;  Nelson  v.  State,  61 
Miss.  212. 


345  EVIDENCE  IX  GENERAL.  [§    3043. 

defense  of  somnamljulism/'"  or  to  prove  an  alibi. ■*-^  And  he  may 
show  that  the  deceased  committed  suicide,  er  that  the  crime  was 
committed  by  some  other  person,*--  even,  it  has  been  held,  though  the 
latter  has  been  tried  and  acquitted.*^^  But  the  arrest  and  indictment 
of  another  person  for  the  crime  cannot  be  shown,*-*  nor  is  the 
mere  proximity  of  another  person  to  the  scene  of  the  homicide  rele- 
vant, without  something  tending  to  connect  him  with  it.*-^  The 
defense  of  insanity,  and  other  defenses  have  already  been  sufficiently 
considered. 

§  3043.  Evidence  in  general. — It  may  be  stated  as  a  general  rule 
that  the  prosecution,  subject  to  the  established  rules  of  evidence, 
may  introduce  testimony  as  to  any  matters  legitimately  tending  to 
prove  any  of  the  essential  elements  of  the  homicide  or  to  connect  the 
accused  therewith;  and  that  the  accused,  subject  to  the  establislied 
rules  of  evidence,  may  introduce  testimony  as  to  such  matters  legiti- 
mately tending  to  rebut  the  evidence  of  the  prosecution  or  to  justify 
his  offense  or  to  reduce  the  degree  of  the  offense.*-"  The  evidence 
must,  however,  be  relevant  to  the  issue  or  facts  in  issue  and  must  tend 
to  prove  a  fact  material  to  the  prosecution  or  defense  or  from  which 
a  presumption  or  inference  may  be  reasonably  drawn  in  reference  to 
a  material  fact  involved  in  the  issue.*-^  And  evidence  which  tends 
merely  to  arouse  the  passions  or  sympathies  of  the  jury  against  or  in 

^^'Fain  v.  Commonwealth,  78  Ky.  N.  W.  684;  State  v.  Myers,  12  Wash. 

183,  39  Am.  R.  213;   see  as  to  hyp-  77,  40  Pac.  626. 

notism.  People  v.  Worthington,  105  *=»  Noles  v.    State,    26   Ala.    31,   62 

Cal.  166,  38  Pac.  689.  Am.  Dec.  711;   Burton  v.  State,  115 

^-1  Gray  v.  State,  42  Fla.  174,  28  So.  Ala.  1,  22  So.  585;  Appleton  v.  State, 

5.S;   Goodwin  v.  State,  114  Wis.  318,  61  Ark.  590,  33  S.  W.  1066;    People 

90  N.  W.  170.  v.  Clarke,  130  Cal.  642,  63  Pac.  138; 

"-Keith  V.  State,  157  Ind.  376,  61  State  v.  Cronin,  64  Conn.  293,  29  Atl. 

N.  E.  716;   Green  v.  State,  154  Ind.  536;   Gantling  v.  State,  40  Fla.  237, 

655,  57  N.  E.  637;   Synon  v.  People,  23  So.  857;   Ponder  v.  State,  87  Ga. 

183  111.  609,  59  N.  E.  508;  Common-  262,  13  S.  E.  464;  Gannon  v.  People, 

wealth  v.  Werntz,  161  Pa.  St.  561,  29  127  111.  507,  21  N.  E.  525,  11  Am.  St. 

Atl.  272;   Ogden  v.  State,   (Tex.  Cr.  147;    Holtz  v.  State,  76  Wis.   99,  44 

App.)  58  S.  W.  1018.  N.  W.  1107;   Commonwealth  v.  Ken- 

'^  People  V.  Mitchell,  100  Cal.  328,  nedy,   170   Mass.   18,   48   N.   E.   770; 

34  Pac.  698.  People  v.Shea,  147  N.  Y.  78,  41  N.  E. 

^=*  Baker  v.   State,   122  Ala.   1,   26  505. 

So.   194;    Taylor  v.   Commonwealth,  "'Jones  v.  State,  51  Ohio  St.  331, 

90  Va.  109,  17  S.  E.  812.  38    N.    E.    79;    Taylor    v.    Common- 

"=  State  V.  Beck,  73  Iowa  616,  35  wealth,  90  Va.  109,  17  S.  E.  812. 


3043.] 


HOMICIDE. 


346 


favor  of  the  accused,  or  to  divert  their  minds  from  the  question 
which  they  are  to  decide,  or  which  can  have  no  reasonable  hearing 
upon  that  question,  is  not  competent.*^^  Circumstantial  as  well  as 
direct  evidence  is  competent,  and  when  direct  evidence  is  wanting 
the  offense  may  be  sufficiently  established  by  such  evidence.  Cir- 
cumstantial evidence  is  often  allowed  to  take  a  wide  range,  although 
it  has  been  said  that  it  should  always  be  received  and  weighed  with 
great  caution.*^®  Evidence  which  shows  or  tends  to  show  that  the 
defendant  was  possessed  of  or  procured  the  means  of  committing  the 
homicide,  that  he  had  made  arrangements  therefor,  or  that  he  had 
the  opportunity  to  commit  the  homicide,  is  competent*^**  in  a  proper 
case.  Evidence  that  the  defendant  borrowed,  purchased  or  stole,  had 
in  his  possession  or  practiced  using  a  similar  weapon,  has  also  been 
held  admissible  for  the  purpose  of  showing  preparations  to  commit 
the  crime.* ^^     In  order  to  warrant  a  conviction  on  circumstantial 


♦=*  Andersen  v.  United  States,  170 
U.  S.  481,  18  Sup.  Ct.  689;  Compton 
V.  State,  117  Ala.  56,  23  So.  750; 
Evans  v.  State,  58  Ark.  47,  22  S.  W. 
1026;  People  v.  Dice,  120  Cal.  189,  52 
Pac.  477;  Taylor  v.  People,  21  Colo. 
426,  42  Pac.  652;  Roten  v.  State,  31 
Fla.  514,  12  So.  910;  Hood  v.  State, 
93  Ga.  168,  18  S.  B.  553;  Kirkham  v. 
People,  170  111.  9,  48  N.  E.  465; 
Shields  v.  State,  149  Ind.  395,  49  N. 
E.  351;  Riggs  v.  Commonwealth,  103 
Ky.  610,  45  S.  W.  866;  State  v.  John- 
son, 41  La.  Ann.  574,  7  So.  670;  Peo- 
ple v.  Macard,  73  Mich.  15,  40  N.  W. 
784;  State  v.  Hudspeth,  150  Mo.  12, 
51  S.  W.  483;  State  v.  Gay,  18  Mont. 
51,  44  Pac.  411;  Carr  v.  State,  23 
Neb.  749,  37  N.  W.  630;  People  v. 
Greenwall,  108  N.  Y.  296,  15  N.  E. 
404,  2  Am.  St.  415;  State  v.  Symes, 
20  Wash.  484,  55  Pac.  626;  Holtz  v. 
State.  76  Wis.  99,  44  N.  W.  1107. 

*-■' Campbell  v.  People,  159  111.  9, 
42  N.  E.  123,  50  Am.  St.  134;  Jenkins 
V.  State,  35  Fla.  737,  18  So.  182,  48 
Am.  St.  267;  Wharton  v.  State,  73 
Ala.  366;  Green  v.  State,  38  Ark. 
304;  People  v.  Smith,  106  Cal.  73,  39 
Pac.  40. 


""Davis  v.  State,  126  Ala.  44,  28 
So.  617;  Boiling  v.  State,  54  Ark. 
588,  16  S.  W.  658;  People  v.  Winters, 
125  Cal.  325,  51  Pac.  1067;  Burgess 
v.  State,  93  Ga.  304,  20  S.  E.  331; 
Palmer  v.  People,  138  111.  356,  28  N. 
E.  130,  32  Am.  St.  146;  Wood  v. 
State,  92  Ind.  269;  State  v.  Cunning- 
ham, 111  Iowa  233,  82  N.  W.  775; 
State  V.  Brown,  75  Me.  456;  Garlitz 
V.  State,  71  Md.  293,  18  Atl.  39;  State 
V.  Barrett,  40  Minn.  65,  41  N.  W. 
459;  State  v.  Rider,  95  Mo.  474,  8  S. 
W.  723;  People  v.  Kennedy,  159  N. 
Y.  346.  54  N.  E.  51,  70  Am.  St.  557; 
State  V.  Brabham,  108  N.  Car.  793, 
13  S.  E.  217;  State  v.  O'Neil,  13  Ore. 
183,  9  Pac.  284;  State  v.  Mowry,  21 
R.  I.  376,  43  Atl.  871;  State  v.  Do- 
herty,  72  Vt.  381,  48  Atl.  658;  Nich- 
olas V.  Commonwealth,  91  Va.  741, 
21  S.  E.  364;  State  v.  McCann,  16 
Wash.  249,  47  Pac.  443. 

"'  Finch  V.  State,  81  Ala.  41,  1  So. 
565;  People  v.  Rogers,  71  Cal.  565, 
12  Pac.  679;  Walsh  v.  People,  88  N. 
Y.  458;  Boiling  v.  State,  54  Ark.  588, 
16  S.  W.  658. 


347  EVIDEN'CE    HELD   ADMIS.SIBLE.  [§    3D44. 

evidence,  however,  it  has  been  said  in  substance,  that  each  necessary 
link,  or  in  other  words,  each  and  every  material  and  necessary  fact 
upon  which  the  conviction  depends,  must  generally  be  proved  by 
competent  evidence,  beyond  all  reasonable  doubt;  such  facts  must 
be  consistent  with  each  other  and  with  the  main  fact  sought  to  be 
proved;  and  the  circumstances,  taken  together,  must  be  of  a  conclu- 
sive nature,  leading,  on  the  whole,  to  a  satisfactory  conclusion  and 
producing  in  effect  a  reasonable  and  moral  certainty  that  the  accused, 
and  no  other  person,  committed  the  offense  charged."-  The  subject 
of  the  admissibility  of  evidence  of  other  offenses  generally  has  been 
treated  in  the  tirst  chapter  in  this  volume.  It  is  also  treated,  in  con- 
nection with  particular  crimes,  such  as  forgery,  burglary,  false  pre- 
tenses and  larceny.  It  is  therefore  unnecessary  to  consider  it  at  length 
in  this  connection.  Here,  as  elsewhere,  the  general  rule  is  that  evi- 
dence of  a  distinct  independent  offense  is  not  competent  to  prove  the 
defendant's  guilt  of  the  offense  charged,  but  that  evidence  of  other 
offenses  is  often  competent  to  prove  motive,  intent  and  the  like,  or  as 
part  of  the  res  gestae,  when  connected  with  the  crime  in  question,  and, 
if  otherwise  competent,  it  is  not  inadmissible  merely  because  it  tends 
to  prove  some  other  offense  as  well.*^^ 

§  3044.  Evidence  in  general — Admissible. — Photographs  with 
proper  evidence  in  relation  thereto  are  admissible  for  the  purpose 
of  identifying  the  deceased.*^*  Photographs  are  also  admissible  for 
the  purpose  of  showing  the  wounds  on  the  body  of  the  deceased. *^^ 

«='21  Am.  &  Eng.  Ency.  of  Law,  E.  576;  State  v.  Messimer,  75  N.  Car. 

213;    see    also,    Wharton    v.    State,  385;  Commonwealth  v.  Johnson,  162 

73  Ala.  366;  Green  v.  State,  38  Ark.  Pa.  St.  63,  29  Atl.  280;  Lancaster  v. 

304;  People  v.  Smith,  106  Cal.  73,  39  State,  91   Tenn.   267,   18   S.   E.  777; 

Pac.   40;    Jenkins  v.    State,   35   Fla.  Hill  v.  State,  37  Tex.  Cr.  App.  415,  35 

737,    IS    So.    182.    48    Am.    St.    267;  S.  W.  660;   State  v.  Smith,  9  Wash. 

Campbell  v.  People,  159  111.  9,  42  N.  341,  37  Pac.  491;   State  v.  Flanagan, 

E.  123,  50  Am.  St.  134;   Hinshaw  v.  26  W.  Va.  116. 

State,   147   Ind.   334,  47  N.  E.   157;  "^  See,  62  L.  R.  A.  193,   201,  227. 

State  v.  Kennedy,  77   Iowa  208,  41  278,  320,  note,  where  numerous  cases 

N.    W.    609;    Jackson    v.    Common-  are  collected  and  reviewed, 

wealth,  100  Ky.  239,  38  S.  W.  422,  66  *"  State  v.  Windahl,  95   Iowa  470, 

Am.  St.  336;  Commonwealth  v.  Web-  64  N.  W.  420;    Beavers  v.  State,  58 

ster.   5   Cush.    (Mass.)    295,   52  Am.  Ind.  530. 

Dec.  711;  People  v.  Aiken,  66  Mich.  •'■'=' Malachi  v.  State,  89  Ala.  134,  8 

460.  33  N.  W.  821,  11  Am.  St.  512;  So.  104;    People  v.   Fish,  125  N.  Y. 

Perkins  v.  State.  (Miss.)  23  So.  579;  136.  26  N.  E.  319;  Wilson  v.  United 

People  v.  Place,  157  N.  Y.  584,  52  N.  States,  162  U.  S.  613,  16  Sup.  Ct.  895. 


§  304:4.]  HOMICIDE.  348 

So  maps  and  diagrams  properly  autlienticated  and  made  by  one  hav- 
ing the  requisite  skill  are  admissible. *^^  Articles  found  on  a  dead 
body  are  proper  to  be  considered  in  establishing  its  identity.'*^ ^  And 
the  identity  of  a  human  skull  and  jaw  bone  may  be  proved  by  per- 
sons who  were  familiar  with  the  formation  of  the  teeth  and  jaws  ' 
of  the  person  whose  skull  it  is  alleged  to  be.*^^  It  has  also  been  held 
that  it  is  unnecessary,  but  is  harmless  to  the  accused,  to  prove  tliat 
deceased  was  a  human  being.*^^  The  character  of  foot-prints  lead- 
ing to  or  from  the  scene  of  the  crime,  discovered  when  the  crime  was 
discovered,  and  their  correspondence  with  the  feet  of  the  accused, 
or  with  shoes  worn  by  him  or  found  in  his  possession,  are  admissi- 
ble in  evidence  for  the  purpose  of  identifying  him  as  the  guilty 
agent.*^°  So,  evidence  as  to  the  caliber  of  the  bullet  taken  from  the 
body  of  the  person  killed,  and  as  to  cartridges  taken  from  defend- 
ant's trunk,  has  been  held  competent,  as  tending  to  identify  the 
defendant  as  the  person  who  shot  the  deceased.**^  Letters  may  be 
competent  evidence  when  disclosing  a  motive.**^  They  are  also  com- 
petent in  a  proper  case  when  they  contain  a  threat  to  kill  the  deceased 
or  contain  an  admission  that  the  defendant  has  committed  the 
crime. **^  So,  letters  are  admissible  to  show  the  relations  and  feel- 
ings existing  between  the  accused  and  the  deceased.'***  But  letters 
written  by  the  accused  to  his  wife  have  been  held  not  admissible 
against  him.**^  As  a  general  rule,  it  is  said  that  any  competent  evi- 
dence referring  to  the  death  and  the  criminal  agency  producing  it 

«« Burton  V.  State,  107  Ala.  108,  18  Stokes   v.    State,    5    Baxt.    (Tenn.) 

So.  284;    People  v.  Phelan,  123  Cal.  619,  30  Am.  R.  72;  Walker  v.  State, 

551,  56  Pac.  424;  Territory  v.  Egan,  7  Tex.  App.  245,  32  Am.  R.  595. 

3  Dak.  119,  13  N.  W.  568;  Common-  "^People  v.  Minisci,  12  N.  Y.  St. 

wealth  V.  Hourigan,  89  Ky.  305,  12  719. 

S.  W.  550;  Gavigan  v.  State,  55  Miss.  "=  Simons  v.  People,  150  111.  66,  36 

533;    People  v.   Johnson,   140   N.   Y.  N.  E.  1019. 

350,  35  N.  E.  604;  Smith  v.  State,  20  "^Singleton  v.  State,  71  Miss.  782, 

Tex.  App.  134.  16  So.  295,  42  Am.  St.  488;   State  v. 

«"  State  V.  Dickson,  78  Mo.  438.  Soper,  148  Mo.  217,  49  S.  W.  1007. 

«s  Qi-ay  V.  Commonwealth,  101  Pa.  ***  Commonwealth   v.    Krause,    193 

St.  380,  47  Am.  R.  733.  Pa.    St.    306,   44    Atl.    454;    State   v. 

^^"Epps  V.  State,  102  Ind.  539,  1  N.  Leabo,   84  Mo.   168,   54   Am.   R.   91; 

E.  491.  Pettit  V.  State,  135  Ind.  393,  34  N.  E. 

""Young   V.    State,    68    Ala.    569;  1118;  O'Brien  v.  Commonwealth,  89 

Campbell  v.  State,  23  Ala.  44;   Peo-  Ky.  354,  12  S.  W.  471. 

pie  V.  McCurdy,  68  Cal.  576,  10  Pac.  *•=*  Wilkerson  v.  State,  91  Ga.  729, 

207;    Dillin  v.  People,  8  Mich.  357;  17  S.  E.  990,  44  Am.  St.  63. 
Murphy    v.    People,    63    N.    Y.    590; 


349  EviDEXCE  HELD  ad:missible.  [§  3044. 

and  which  tends  to  establish  or  disprove  them  is  admissible,  and  all 
proper  facts  in  the  case,  however  trivial,  should  be  considered  as  bear- 
ing on  the  question  of  malice.*'**'  So,  where  one  person  is  killed  by 
mistake  for  another,  evidence  showing  malice  on  the  part  of  defend- 
ant toward  the  person  for  whom  deceased  is  supposed  to  have  been 
mistaken  is  admissible.**^  It  has  also  been  held  that  one  indicted 
for  murder  may  show  that  another  had  a  motive  for  committing  the 
murder.**^  .  It  has  been  held  that  where  the  accused  entered  a  room 
with  a  drawn  pistol,  he  may  be  examined  as  to  what  his  intention  was 
at  the  time  he  entered  the  room.**^  But,  in  another  case,  where  the 
■charge  was  for  assault  with  intent  to  murder,  it  was  held  that  the 
accused  could  not  be  asked  what  his  intent  was.*°°  The  fact  that  the 
prisoner  secreted  a  knife,  and  began  a  fight  with  his  fists,  in  the 
course  of  which  he  used  the  knife,  has  been  held  evidence  of  mur- 
derous intent.*"^  "\Miere  a  watchman  shot  a  man,  evidence  that  there 
had  been  much  stealing  in  the  neighborliood  recently,  was  held  com- 
petent on  the  question  of  intent.*^-  It  may  be  sliown  in  a  proper  case, 
that  the  defendant  and  the  deceased  were  on  unfriendly  terms. *^^ 
And  evidence  of  a  quarrel  between  defendant  and  deceased  three  or 
four  weeks  before  tl:c  homicide  has  been  held  admissible  as  showing 
the  relations  between  the  parties.*^*  Evidence  showing  that  de- 
ceased was  the  mistress  of  the  accused  has  been  held  competent  ;*°^ 
and  it  has  been  held  that  the  prosecution  may  prove  that  the  de- 
ceased, when  killed,  was  under  the  influence  of  whiskey.*^®  The  fact 
of  the  possession  of  money  by  the  accused  is  admissible*^"  in  a  proper 

"•=  United    States   v.    Meagher,    37  '^People  v.  Lyons,  110  N.  Y.  618, 

Fed.  875.  17  N.  E.  391;   see  also,  Davidson  v. 

«^  Clarke  v.  State,  78  Ala.  474,  56  State,   135   Ind.   254,   34    N.  E.   972; 

Am.  R.  45.  Cluck  v.  State,  40  Ind.  263. 

**^  Sawyers     v.      State,      15      Lea  *='  People  v.  Young,  102  Cal.  411, 

(Tenn.)   694.  36  Pac.  770. 

"°  State   v.   Wright,   40    La.   Ann.  «■=  Holmes  v.   State,  11  Tex.  App. 

589,  4  So.  486.  223;    State  v.   Home,  9   Kans.   119; 

•'soponville  v.  State,  91  Ala.  39,  8  State  v.  Barfield,  30  N.  Car.  344. 

So.  688.  •*■■'  Commonwealth  v.  Williams,  171 

"'Price  v.  State,  36  Miss.  531,  72  Mass.  461,  50  N.  E.  1035;   Little  v. 

Am.  Dec.  195.  State,  39  Tex.  Cr.  App.  654.  47  S.  W. 

^'Hobbs   V.    State,    16    Tex.    App.  984;    People  v.   Johnson,   140   N.   Y. 

:517.  350,  35  N.  E.  604;  Gates  v.  People,  14 

*""  State   V.   Stackhouse,    24   Kans.  111.  433;  State  v.  Magers,  36  Ore.  38, 

445;   see  also,  Siberry  v.  State,  133  58  Pac.  892. 
Ind.  677,   33   N.  E.   681;    Siberry  v. 
State,  149  Ind.  684,  39  N.  E.  936. 


§  3044.]  HOMICIDE.  350 

case.  Thus  the  fact  that  the  accused  after  the  homicide  had  in  his 
possession  a  sum  of  money  corresponding  to  an  amount  that  was 
shown  to  have  been  possessed  by  the  deceased,  taken  in  connection  with 
the  evidence  of  the  previous  impecunious  condition  of  the  accused,  was 
held  competent.*^^  Sayings  of  the  assailant  next  day  after  the  as- 
sault, showing  bitter  hatred  toward  the  person  assailed,  are  admissi- 
ble to  show  malice  at  the  time  of  the  assault.*^'*  So  evidence  is  com- 
petent in  a  proper  case  to  show  that  the  accused  had  in  his  posses- 
sion a  weapon  which  might  have  caused  the  wounds  on  the  body  of 
the  deceased. *""  And  it  has  been  held  not  improper  to  show  the 
business  of  the  accused  at  the  time  of  the  killing.*''^  Where  the  theory 
of  the  state  was  that  defendant  had  given  deceased  whiskey  contain- 
ing a  poison,  to  produce  an  abortion,  which  had  caused  her  death, 
it  was  held  that  a  witness  should  have  been  allowed  to  testify  that  a 
few  days  before  the  death  of  deceased  he  heard  her  say  that  she  was 
pregnant,  and  that  she  asked  him  to  procure  an  abortifacient  for  her, 
suggesting  ergot;  that  he  had  refused  to  do  so,  but  that,  on  her  re- 
quest, her  brother-in-law  had  taken  some  money  from  her,  and  agreed 
to  get  it  for  her.*^-  An  expert  who  has  heard  the  autopsy  described 
may  be  asked  if,  in  his  opinion,  it  was  properly  conducted.*^^  It  is 
also  held  that  a  competent  surgeon  or  medical  practitioner,  who  con- 
ducted an  autopsy,  may  testify  as  to  the  result  of  it.*"*  So  it  is 
held  that  the  physician  may  describe  what  tests  are  necessary  to 
ascertain  the  cause  of  death,  and  after  relating  the  facts  revealed 
by  the  autopsy,  may  give  his  opinion,  based  thereon,  as  to  the  cause 
and  mode  of  death.**'^  It  is  proper  to  admit  evidence  concerning  a 
supposed  spot  of  blood  on  defendant's  coat,  together  with  a  test  of 
physicians  with  reference  thereto,*"*'  And  in  a  recent  text  book  it  is 
said:  "All  persons  are  more  or  less  familiar  with  the  appearance 
of  stains  caused  by  blood.  It  lias,  therefore,  been  repeatedly  held  from 
time  immemorial  that  ordinary  witnesses  may  testify  that  certain 

^'' Gates    v.    People,    14    111.    433;  *«=  Brown    v.    Commonwealth,     26 

Garza  v.  State,  39  Tex.  Cr.  App.  358,  Ky.  L.  R.  1269,  83  S.  W.  645. 

46  S.  W.  242,  73  Am.  St.  927.  *"'  State  v.  Moxley,  102  Mo.  374,  15 

*°«  Meeks  v.  State,  51  Ga.  429.  S.  W.  556. 

*•*  People  V.  McDowell,  64  Cal.  467,  ^"^  Commonwealth   v.    Taylor,    132 

3  Pac.  124.  Mass.  261. 

^"1  Fahnestock    v.    State,    23    Ind.  ^^  State  v.  Merrlman,  34  S.  Car.  Id, 

231;  State  v.  Moelchen,  53  Iowa  310,  12  S.  E.  619. 

5  N.  W.   186;    O'Brien  v.   Common-  «°  Beavers  v.  State,  58  led.  530. 
wealth,  89  Ky.  354,  12  S.  W.  471. 


351  EVIDENCE   HELD    IXADMISSIBLE.  [§    3045. 

stains  on  clothing  or  other  articles  look  like  or  resemble  blood  stains. 
No  peculiar  skill  or  experience  is  required  to  be  possessed  by  a  wit- 
ness who  saw  the  stains  in  court  or  elsewhere  to  render  his  evidence 
admissible,  nor  need  a  chemical  analysis,  or  test,  or  a  microscopical 
examination  have  been  made."*"  Where  it  appears  that  deceased 
was  shot,  and  there  is  evidence  that  defendant,  when  arrested,  said 
he  could  not  shoot  a  rifle,  or  had  not  shot  a  gun  for  a  long  time,  it 
is  proper  to  admit  evidence  that  he  is  an  expert  with  the  rifle.*"^ 
So,  in  rebuttal  of  testimony  for  the  defendant  that,  as  the  deceased 
fell,  he  threw  a  pistol  over  into  the  field,  witnesses  may  testify  that 
the  morning  after  the  killing  they  went  into  such  field  and  found 
no  pistol.'*''^ 

§  3045.  Evidence  in  general — Not  admissible. — As  already  shown, 
threats  against  "some  one"  or  the  like  may  be  admissible  when  it 
appears  that  the  deceased  was  meant,  but  threats  made  by  the  ac- 
cused prior  to  the  murder,  to  kill  or  injure  a  person  other  than  the 
deceased,  are  not  ordinarily  admissible.*^"  Evidence  was  admitted 
by  the  trial  court  in  one  case  that,  on  the  day  before  the  killing  the 
deceased  and  the  defendant  had  played  at  dice,  and  the  deceased 
had  won  the  defendant's  watch,  which  was  missing  from  his  body 
when  found,  and  it  was  held  on  appeal  that  questions  as  to  whether 
persons  other  than  defendant  had  gambled  with  deceased,  and  ques- 
tions to  a  female  witness  as  to  whether  her  husband  had  not  on  one 
occasion  shot  at  deceased,  and  whether  she  and  her  husband  were 
living  apart  from  each  other  on  account  of  her  relations  with  de- 
ceased, were  not  admissible.*'^  The  opinion  of  a  witness  that  a 
person  killing  another  in  a  fight  had  an  intent  to  kill  the  deceased 
before  the  fight  commenced  is  not  competent  evidence  of  such  in- 
tent.*'- And  a  witness  cannot  be  asked  whether  defendant's  pistol 
was  fired  accidentally  or  purposely.*"  Evidence  that  the  deceased 
was  intoxicated  is  irrelevant  when  offered  without  any  evidence  of 

*«^  Underbill   Cr.   Ev.,    §    334;    see  "»  Gregory  v.  State,  140  Ala.  16,  37 

also,   People   v.   Gonzalez,   35   N.   Y.  So.  259. 

49;    State  v.  Bradley,  67  Vt.  465,  32  ^'"Carr  v.  State,  23  Neb.  749,  37  N. 

Atl.  238;   State  v.  Welch,  36  W.  Va.  \V.  630. 

690,  15  S.  E.  419;  Tbomas  v.  State,  *"' Bowen  v.  State,  140  Ala.  65,  37 

67    Ga.    460;     McLain    v.    Common-  So.  233. 

wealth,  99  Pa.  St.  86,  100;  People  v.  ^"=  Fundy  v.  State,  30  Ga.  400. 

Smith,  112  Cal.  333,  44  Pac.  663.  *"  State  v.  Ross,  32  La.  Ann.  854. 

*"^  People  v.  Evans,  (Cal.)  41  Pac. 
444. 


§  3046.]  HOMICIDE.  352 

necessity  for  defendant  to  kill  him,  and  when  all  the  evidence  in- 
troduced shows  that  the  defendant  was  the  aggressor.*^*  And  even  if 
intoxication  of  the  deceased  may  be  considered  on  the  question  of 
self-defense  or  necessity  for  the  defendant  to  take  the  former's  life, 
evidence  that  deceased  had  a  jug  of  whiskey  at  home,  or  carried  one 
home  the  day  of  the  homicide,  is  irrelevant,  and  does  not  tend  to 
show  he  was  intoxicated  at  the  time  of  the  trouble.  It  is  also  held  in 
the  same  case  that  the  defendant  should  not  be  allowed  to  testify 
why  he  had  the  pistol  on  the  occasion  of  the  difficulty.  Hearsay  evi- 
dence not  falling  within  any  of  the  exceptions,  limitations  or  qualifica- 
tions of  the  hearsay  rule,  is  incompetent;*^^  and  dying  decelarations 
have  been  held  inadmissible  to  prove  prior  difficulties  or  threats.* ^^ 

§  3046.  Weight  and  sufficiency — Variance, — Proof  of  a  killing,  in 
any  manner  or  by  any  means,  that  correspond  substantially  with  the 
indictment,  is  sufficient.*'"  Thus,  proof  of  a  shooting  with  a  pistol 
has  been  held  sufficient  to  sustain  an  averment  of  shooting  with  a 
gun  and  vice  versa.*^^  And  proof  of  killing,  with  a  dagger  or  bowie- 
knife  will  sustain  an  averment  of  death  from  stabbing  with  a  dirk, 
sword  or  similar  weapon.*"  But  proof  of  killing  with  a  knife  is  not 
sufficient  to  sustain  an  allegation  of  killing  by  shooting  and,  as  a 
rule,  where  the  killing  is  charged  to  have  been  with  a  certain  weapon, 
proof  of  an  entirely  different  kind  of  a  weapon  is  held  a  fatal  vari- 
ance.*^" Difference  in  the  spelling  of  the  name  will  be  disregarded 
when  the  name  as  proved  is  idem  sonans  with  that  alleged.*^^  Cir- 
cumstantial evidence  of  the  identity  of  deceased,  which  leaves  no 
room  for  reasonable  doubt,  is  sufficient.*®-     And  circumstantial  evi- 

*''  Gregory  v.  State,  140  Ala.  16,  37  United  States,  170  U.  S.  481,  18  Sup. 

So.  259.  Ct.  689;  Terry  v.  State,  120  Ala.  286, 

*"  Forman    v.    Commonwealth,    9  25  So.  176. 

Ky.  L.  R.  759,  6  S.  W.  579;  State  v.  ^'«  Commonwealth    v.    Webster,    5 

Terrell,  12  Rich.  L.    (S.  Car.)    321;  Cush.  (Mass.)  295,  52  Am.  Dec.  711; 

Brown    v.    People,    17    Mich.     429;  State    v.    Lautenschlager,    22    Minn. 

Stephens  v.  State,  20  Tex.  App.  255.  514;   Turner  v.  State,  97  Ala.  57,  12 

*'»Binns    v.    State,    46    Ind.    311;  So.  54. 

Jones  V.  State,  71  Ind.  66;    State  v.  *"=' Hernandez  v.  State,.  32  Tex.  Cr. 

AVood,  53  Vt.  560;  State  v.  Moody,  18  App.  271,  22  S.  W.  972. 

Wash.  165,  51  Pac.  356;   Sullivan  v.  ^'^"Witt  v.  State,  6  Cold.  (Tenn.)  5. 

State,  102   Ala.   135,  15   So.    264,   48  *^i  State  v.   Lincoln,  17  Wis.  597; 

Am.  St.  22;  ante,  Vol.  I,  §  336.  Girous  v.  State,  29  Ind.  93;  State  v. 

*"  Commonwealth    v.    Webster,    5  Witt,  34  Kans.  488,  8  Pac.  769. 

Cush.   (Mass.)   295;   State  v.  Smith,  "'-State  v.  Dickson,  78  Mo.  438. 
32   Me.   369;    see   also,   Andersen  v. 


353  WEIGHT  AND  SUFFICIEXCY — VARIANCE.  [§    304G. 

dence  may  be  sufficient  even  as  to  the  corpus  delicti.*^^  Convictions 
have  been  upheld  when  only  charred  or  mutilated  parts  of  the  body 
have  been  found,  the  deceased,  having  been  burned,  cut  in  pieces, 
or  subjected  to  the  action  of  acid.*®*  And  the  fact  of  death  may  be 
proved  by  circumstantial  evidence,  when  that  is  the  best  evidence 
obtainable.*®^  So  proof  of  premeditation  need  not  be  direct  and  posi- 
tive, but  may  be  deduced  from  all  the  facts  attending  the  killing.*®^ 
But  it  has  been  held  that  where  it  is  probable  that  the  death  may 
have  been  due  to  natural  causes  or  to  accident,  a  conviction  of  mur- 
der in  the  second  degree  even  cannot  stand.*®^  And  it  has  also  been 
held  that  if  it  appears  that  the  instrument  used  would  not  probably 
cause  death,  the  jury  should  be  limited  to  finding  no  greater  degree 
of  crime  than  manslaughter.*®®  To  warrant  a  conviction  of  murder 
in  the  first  degree  it  has  been  said  that  express  malice  must  be  proved 
by  such  evidence  as  is  reasonably  sufficient  to  satisfy  the  jury  of  its 
existence.*®^  But  it  has  been  held  that  conviction  of  a  defendant  of 
murder  in  the  first  degree  was  warranted  by  evidence  showing  the 
death  of  deceased  by  a  pistol  shot,  the  presence  of  defendant  at  or 
about  the  time  of  the  shooting,  his  previous  threats,  immediate  flight, 
and  subsequent  arrest  in  a  neighboring  state.*^"  And  it  has  been  held 
that  where,  after  a  violent  attack,  death  soon  ensued,  the  jury  were 
justified  in  finding  an  intent  on  the  part  of  the  assailant  to  kill.*''^ 
And  where,  on  a  conviction  for  murder,  the  evidence  warrants  the 
jury  in  believing  that  defendant  killed  deceased  intentionally,  and 

*«3  As   to   evidence   of   the   corpus  *^  Yates  v.  State,  26  Fla.  484,  7  So. 

delicti  held  sufficient,  see.  People  v.  880;   State  v.  Mitchell,  64  Mo.  191; 

Moran,  144  Cal.  48,  77  Pac.  777;  Wil-  Territory  v.  Romine,  2  N.  M.  114; 

son  V.  State,  140  Ala.  43,  37  So.  93;  see  also.  State  v.  Lipscomb,  134  N. 

Edwards    v.    Territory,     (Ariz.)     76  Car.  689,  47  S.  E.  44. 

Pac.  458;  as  to  identity  of  accused,  ^'^  Lucas  v.  State,  19  Tex.  App.  79. 

see.  People  v.  Buckley,  143  Cal.  375,  *^»  State  v.  Craton,  28  N.  Car.  164. 

77  Pac.  169;   Commonwealth  v.  Sal-  '"'' Farrer  v.  State,  42  Tex.  265. 

yards,  158  Pa.  St.  501,  27  Atl.  993.  ^""Commonwealth  v.  Salyards,  158 

«*  Stocking  V.   State,  7   Ind.   326;  Pa.  St.  501,  27  Atl.  993;  see  also  for 

Commonwealth     v.     Williams,     171  other   cases   of  evidence   held   suffi- 

Mass.  461,  50  N.  E.  1035;   People  v.  cient  to  sustain  a  conviction  of  mur- 

Alviso,    55    Cal.    230;    Anderson    v.  der  in  the  first  degree,  Spaulding  v. 

State,  24  Fla.  139,  3   So.   884;    Lan-  State,   162   Ind.   297,   70   N.   E.   243; 

caster  v.  State,  91  Tenn.  267,  18  S.  People  v.  Mooney,  178  N.  Y.  91,  70  N. 

W.  777;  State  v.  Smith,  9  Wash.  341,  E.    97;    Black    v.    State,    (Tex.    Cr. 

37  Pac.  491.  App.)   81  S.  W.  302;   State  v.  Clark, 

""^  Campbell  v.  People,  159  111.  9,  42  34  Wash.  485,  76  Pac.  98. 

N.  E.  123.  «i  Luck  V.  State,  96  Ind.  16. 
Vol.  4  Elliott  Ev.— 23 


HOMICIDE. 


354 


§  3046.] 

in  cold  blood,  the  absence  of  satisfactory  proof  of  motive  is  not 
material.*^^  In  case  of  homicide  by  poisoning  it  is  held  that  a  chemi- 
cal analysis,  an  autopsy,  and  the  aid  of  expert  testimony,  though 
very  desirable,  are  never  indispensable.*^^  It  has  also  been  held  that 
if  it  is  shown  that  poison  was  in  a  house  where  the  accused  lived, 
within  easy  reach,  and  that  he  had  knowledge  of  the  fact,  a  convic- 
tion will  be  sustained*''*  on  that  and  other  proper  evidence.  Proof 
of  venue  has  been  held  sufficient  if  it  is  proved  in  any  manner  which 
satisfies  tlie  jury  that  the  killing  was  committed  within  the  jurisdic- 
tion of  the  court.*''' 


«»^  People  V.  Sliney,  137  N.  Y.  570, 
33  N.  E.  150;  Lillie  v.  State,  (Neb.) 
100  N.  W.  316;  see  also,  §  3026,  on 
motive. 

^''^  Johnson  v.  State,  29  Tex.  App. 
150,  15  S.  W.  647;  State  v.  Slagle,  83 
N.  Car.  630.  See  also.  People  v. 
Wood,  (Cal.)  79  Pac.  367. 

*'*Zoldoske  v.  State,  82  Wis.  580, 
52  N.  W.  778. 


^=*5  State  v.  West,  69  Mo.  401,  33 
Am.  R.  506;  Marion  v.  State,  20  Neb. 
233,  29  N.  W.  911,  57  Am.  R.  825; 
Stringfellow  v.  State,  26  Miss.  157. 
59  Am.  Dec.  247;  Dumas  v.  State,  62 
Ga.  58;  Beavers  v.  State,  58  Ind. 
530;  Commonwealth  v.  Kaiser,  184 
Pa.  St.  493,  39  Atl.  299;  Riggs  v. 
State,  30  Miss.  635. 


CHAPTER  CXLVI. 


Sec. 

3047.  Definition  and  elements. 

3048.  Distinguished       from 

crimes. 
2049.  The  taking. 

3050.  The  trespass. 

3051.  The  carrying  away. 

3052.  The  property. 

3053.  Ownership. 

3054.  Non-consent. 


LARCEXY. 

Sec. 

3055. 

The  intent. 

)ther     3056. 

The      intent — Possession 
tained  by  fraud. 

ob- 

3057. 

Other  crimes. 

3058. 

Recent    possession    of    st 
goods. 

;olen 

3059. 

Defenses. 

3059a.  Miscellaneous — Recent  cases. 


§  3047.  Definition  and  elements. — Larceny  is  the  wrongful  taking 
and  carrying  away  of  the  personal  goods  of  another  with  the  felonious 
intent  to  convert  them  to  the  taker's  own  use  and  make  them  his 
own  property  without  the  consent  of  the  owner.^  It  is  also  stated 
in  some  definitions  that  the  taking  must  be  without  any  color  or 
pretense  of  right.  But  this  is  generally  imderstood  to  be  included  in 
the  statement  that  it  must  be  wdth  felonious  intent.  In  a  valuable 
note  upon  the  subject,  in  a  recent  report,  it  is  said :  "Larceny  may, 
in  general,  be  defined  as  the  taking  by  trespass  and  carrying  away 
of  the  personal  property  of  another,  without  his  consent,  with  the 
intent  to  deprive  the  owner  thereof.  Thus,  larceny  is  (1)  the  taking 
(2)  by  trespass  (3)  and  carrying  away  (4)  of  the  personal  property 
(5)  of  another  (G)  without  his  consent,  (7)  with  the  intent  to  de- 


^2  East  P.  C.  553;  State  v.  South, 
28  N.  J.  L.  28,  75  Am.  Dec.  250;  Ran- 
som v.  State,  22  Conn.  153,  156;  Rob- 
inson v.  State,  113  Ind.  510,  512,  16 
N.  E.  184;  2  Bouvier  L.  Diet. 
(Rawle's  ed.)  134;  see  also,  4  L.  R. 
A.  291,  note;  2  Bishop  Cr.  Law, 
§§  757,  758;  and  57  Am.  Dec.  271, 
note;  in  some  of  the  states  the  of- 
fense is  defined  by  statute  and  in  a 
few  of  them  some  change  is  made, 

35 


and  acts  are  included  which  would 
not  have  constituted  larceny  at  com- 
mon law.  Larceny  without  personal 
violence  or  aggravating  circum- 
stances is  sometimes  called  simple 
larceny,  and  larceny  accompanied  by 
aggravating  circumstances  is  some- 
times called  compound  larceny.  So, 
larceny  is  classified  as  grand  larceny 
and  as  petit  larceny,  according  to 
the  value  of  the  property. 


§§  3048,  3049.]  i^veceny.  356 

prive  the  owner  thereof."-  These  different  elements,  and  the  evi- 
dence admissible  and  necessary  to  prove  or  disprove  them,  will  be 
considered  in  the  subsequent  sections  in  this  chapter,  but  an  attempt 
will  first  be  made  to  distinguish  larceny  from  other  somewhat  simi- 
lar offenses. 

§  3048.  Distinguished  from  other  crimes. — Larceny  bears  a  close 
resemblance  to  some  other  offenses,  and  it  is  sometimes  difficult  to 
distinguish  them.  This  is  especially  true  in  regard  to  embezzlement 
and  false  pretense,  but  the  distinction  is  well  shown  in  an  opinion 
by  the  Supreme  Court  of  Massachusetts  as  follows:  "If  a  person 
honestly  receives  the  possession  of  the  goods,  chattels,  or  money  of 
another  upon  any  trust,  express  or  implied,  and,  after  receiving  them, 
fraudulently  converts  them  to  his  own  use,  he  may  be  guilty  of  em- 
bezzlement, but  cannot  be  of  that  of  larceny,  except  as  embezzle- 
ment is  by  statute  made  larceny.  If  the  possession  of  such  prop- 
erty is  obtained  by  fraud,  and  the  owner  of  it  intends  to  part  with 
liis  title  as  well  as  his  possession,  the  offense  is  that  of  obtaining 
property  by  false  pretenses,  provided  the  means  by  which  they  are 
acquired  are  such  as  in  law  are  false  pretenses.  If  the  possession  is 
fraudulently  obtained,  with  intent  on  the  part  of  the  person  obtain- 
ing it  to  convert  the  same  to  his  own  use,  and  the  person  parting 
with  it  intends  to  part  with  his  possession  merely,  and  not  with  his 
title  to  the  property,  the  offense  is  larceny."^ 

§  3049.  The  taking. — The  prosecution  must  show  a  taking  of  the 
property  by  the  defendant,*  but  this  may,  in  some  cases,  be  construct- 
ive as  well  as  actual,  ?nd  it  is  not  absolutely  necessary  that  the 
taking  should  be  by  the  defendant  with  his  own  hands,^  nor  that  the 

=  88  Am.  St.  561,  note.  son,  66  N.  Car.  627;  State  v.  Som- 
» Commonwealth  v.  Barry,  124  mers,  12  Mo.  App.  374. 
Mass.  325,  approved  and  adopted  in,  *  Fulton  v.  State,  13  Ark.  168;  Mi- 
People  V.  Miller,  169  N.  Y.  339,  62  zell  v.  State,  38  Fla.  20,  20  So.  769; 
N.  B.  418,  88  Am.  St.  546;  see  also  Sharp  v.  State,  29  Tex.  App.  211,  15 
as  to  the  distinction  between  larceny  S.  W.  176. 

and  false  pretenses,  Zink  V.  People,  =  Lester    v.    State,    32    Ark.    727; 

77  N.  Y.  114,  33  Am.  R.  589;  People  Commonwealth    v.    Lucas,    2    Allen 

V.   Tomlinson,  102   Cal.   19,   36   Pac.  (Mass.)  170;  Commonwealth  v.  Bar- 

506;    see   as  to   distinction  between  ry,  125  Mass.  390;    State  v.  Stroud, 

larceny    and    robbery,    Brennon    v.  95   N.   Car.    626;    Commonwealth   v. 

State,  25  Ind.  403;  State  v.  Hender-  Cruikshank,  138  Pa.  St.  194,  20  Atl. 


357 


THE  TAKIXCJ TRESPASS. 


[§  3050. 


property  should  actually  come  into  jii?  manual  possession.®  In  other 
words,  "to  constitute  one  a  taker  of  property,  it  is  not  necessary  that 
he  should  actually  take  it  into  his  physical  possession,  or  that  he  be 
personally  present  at  the  time  and  place  of  the  actual  taking.  It  is 
sufficient  if  at  the  time  of  the  taking  he  is  doing  something  to  aid 
and  assist  the  one  who  does  the  actual  taking."'  So,  he  may  take  the 
property  by  means  of  an  innocent  third  person.*  It  has  also  been 
held  that  proof  that  employes  feloniously  removed  and  sold  their 
employer's  property  is  sufficient  although  it  has  been  in  their  cus- 
tody.® The  act  of  taking  in  larceny  is  usually  done  more  or  less  in 
secret,  but  the  mere  fact  that  it  was  somewhat  publicly  done  does 
not  necessarily  prevent  the  offense  from  being  larceny.^"  It  is,  how- 
ever, a  material  circumstance  tending  to  negative  an  intent  to  steal.^^ 

§  3050.     The  trespass. — It  is  essential  that,  in  some  sense  at  least, 
a  trespass  should  be  shown  to  have  been  committed.    Unless  the  ele- 


937;  Pyland  v.  State,  4  Sneed 
(Tenn.)  357;  Lane  v.  State,  41  Tex. 
Cr.  App.  558,  55  S.  W.  831;  Rex  v. 
Pitman,  2  Car.  &  P.  423,  12  E.  C.  L. 
653. 

■^Doss  V.  State,  21  Tex.  App.  505,  2 
S.  W.  814,  57  Am.  R.  618;  State  v. 
Hunt,  45  Iowa  673;  Wixson  v.  Peo- 
ple, 5  Park.  Cr.  Cas.  (N.  Y.)  119; 
People  v.  Gillis,  6  Utah  84,  21  Pac. 
404. 

^Wright  v.  State,  18  Tex.  App. 
358;  Gentry  v.  State,  24  Tex.  App. 
478,  6  S.  W.  321;  Willis  v.  State,  24 
Tex.  App.  586,  6  S.  W.  857;  Edmonds 
V.  State,  70  Ala.  8;  Kent  v.  State,  64 
Ark.  247,  41  S.  W.  849. 

«Doss  v.  State,  21  Tex.  App.  505, 
2  S.  W.  814,  57  Am.  R.  618;  Lane  v. 
State,  41  Tex.  Cr.  App.  558,  55  S.  W. 
831;  Sanderson  v.  Commonwealth, 
11  Ky.  L.  R.  341,  12  S.  W.  136;  Cum- 
mins V.  Commonwealth,  5  Ky.  L.  R. 
200;  see  also.  State  v.  Hunt,  45  Iowa 
673. 

^Atterberry  v.  State,  56  Ark.  515, 
20  S.  W.  411;  People  v.  Call,  1  Den. 
(N.  Y.)   120,  43  Am.  Dec.  655;  Reg. 


V.  Hornby,  1  Car.  &  Kir.  305,  47  E. 
C.  L.  304;  Marcus  v.  State,  26  Ind. 
101;  but  see.  State  v.  Wingo,  89  Ind. 
204;  Wynegar  v.  State,  157  Ind.  577, 
62  N.  E.  38;  see  generally,  88  Am.  St. 
580,  581,  note.  Where  a  servant  has 
the  mere  custody  of  the  property, 
the  possession  remains  in  the  mas- 
ter, or  in  other  words,  the  servant's 
possession  is  that  of  the  master. 

^»  Talbert  v.  State,  121  Ala.  33,  25 
So.  690;  McMullen  v.  State,  53  Ala. 
531;  Newsom  v.  State,  107  Ala.  133, 
18  So.  206;  Higgs  v.  State,  113  Ala. 
36,  21  So.  353;  State  v.  Fenn,  41 
Conn.  590;  State  v.  Zumbunson,  86 
Mo.  Ill;  Johnson  v.  Commonwealth, 
24  Gratt.  (Va.)  555;  but  see.  State  v. 
Ledford,  67  N.  Car.  60. 

"Johnson  v.  State,  73  Ala.  523; 
Buchanan  v.  State,  (Miss.)  5  So. 
617;  McDaniel  v.  State,  8  Smed.  & 
M.  (Miss.)  401,  47  Am.  Dec.  93; 
Stuart  v.  People,  73  111.  20;  see  also. 
Causey  v.  State,  79  Ga.  564,  5  S.  E. 
121,  11  Am.  St.  447;  Seymore  v. 
State,  12  Tex.  App.  391. 


3050.] 


LARCENY. 


358 


ment  of  trespass  exists  there  can  be  no  theft.  ^-  Thus,  where  the  de- 
fendant had  lawful  possession,  in  tlic  first  instance,  a  refusal  to  de- 
liver to  the  owner  on  demand  was  held  insufficient  to  constitute 
larceny.^'  So,  generally,  wlien  the  owner  consents  to  part  not  merely 
with  possession  but  with  his  entire  ownership,  there  is  no  trespass, 
and,  hence  no  larceny.^*  And,  "as  a  general  rule,  a  bailment  passes 
the  possession  of  the  property  to  the  bailee,  as  distinct  from  the  mere 
custody,  and  hence  a  bailee  could  not  be  guilty  of  larceny,  since  he 
came  lawfully  into  the  possession  of  the  property  and,  therefore, 
failed  to  commit  tlie  trespass  necessary  to  render  the  offense  larceny. 
This  was  the  rule  of  common  law,  and  except  where  modified  by 
statute  so  as  to  make  bailees  generally  guilty  of  larceny,  it  is  still  the 
rule."^"^  But  where  the  owner  merely  parts  with  the  custody  and  the 
constructive  possession  remains  in  him  the  elements  of  trespass  may 
be  present  and  even  the  custodian  may  be  guilty  of  larceny.^^  So, 
as  stated  in  another  section,  where  one  gets  possession  of  personal 


"State  V.  Martin,  12  Ired.  L.  (N. 
Car.)  157;  Gadson  v.  State.  36  Tex. 
350;  Garner  v.  State,  36  Tex.  693; 
State  v.  Copeland.  86  N.  Car.  691; 
People  V.  McDonald,  43  N.  Y.  61; 
State  V.  McCartey,  17  Minn.  76; 
Phelps  V.  People,  72  N.  Y.  334;  Hite 
V.  State,  9  Yerg.  (Tenn.)  197; 
Pritchett  v.  State,  2  Sneed  (Tenn.) 
285,  62  Am.  Dec.  468. 

"  People  V.  Taugher,  102  Mich.  598, 
61  N.  W.  66. 

"  See,  Haley  v.  State,  49  Ark.  147, 
4  S.  W.  746;  Stewart  v.  People,  173 
111.  464,  50  N.  E.  1056,  64  Am.  St. 
133;  State  v.  Reese,  49  La.  Ann. 
1337,  22  So.  378;  Elliott  v.  Common- 
wealth, 12  Bush  (Ky.)  176. 

1=88  Am.  St.  576,  note;  Wright  v. 
Lindsay,  20  Ala.  428;  Case  v.  State, 
26  Ala.  17;  Spivey  v.  State.  26  Ala. 
90;  Johnson  v.  People,  113  111.  99; 
State  V.  Fairclough,  29  Conn.  47,  76 
Am.  Dec.  590  (carrier) ;  Warmoth 
V.  Commonwealth,  81  Ky.  133;  Com- 
monwealth V.  Ryan,  155  Mass.  523, 
30  N.  E.  364,  31  Am.  St.  560;  Com- 
monwealth V.  King,  9  Cush.  (Mass.) 


284;  Nichols  v.  People,  17  N.  Y.  114 
(carrier)  ;  People  v.  Cruger,  102  N. 
Y.  510,  7  N.  E.  555,  55  Am.  R.  830; 
State  V.  England,  8  Jones  L.  (N. 
Car.)  399,  80  Am.  Dec.  334;  Stokely 
V.  State,  24  Tex.  App.  509,  6  S.  W. 
538;  Hill  v.  State,  57  Wis.  377,  15 
N.  W.  445;  Krause  v.  Common- 
wealth, 93  Pa.  St.  418,  39  Am.  R.  762; 
People  V.  Call,  1  Den.  (N.  Y.)  120, 
43  Am.  Dec.  655;  State  v.  Fair- 
clough, 29  Conn.  47,  76  Am.  Dec.  590; 
Robinson  v.  State,  1  Coldw.  (Tenn.) 
120,  78  Am.  Dec.  487;  Gill  v.  Bright, 
6  T.  B.  Mon.  (Ky.)  130;  Richards  v. 
Commonwealth,  13  Gratt.  (Va.)  803; 
Holbrook  v.  State,  107  Ala.  154,  x6 
So.  109,  54  Am.  St.  65;  but  see,  57 
Am.  Dec.  280-283,  note. 

'"See,  People  v.  Call,  1  Den.  (N. 
Y.)  120,  43  Am.  Dec.  655;  Holbrook 
V.  State,  107  Ala.  154,  18  So.  109,  54 
Am.  St.  65;  State  v.  McCartey,  17 
Minn.  76;  Brown  v.  People,  20  Colo. 
161,  36  Pac.  1040;  Commonwealth  v. 
Flynn,  167  Mass.  460,  45  N.  E.  924. 
57  Am.  R.  472;  88  Am.  St.  578,  580, 
note. 


359 


THE    CARRYING    AWAY. 


[§    30.j1, 


property  by  means  of  fraud  or  a  trick,  with  a  preconcerted  design 
or  felonious  intent  to  steal  the  property,  the  taking  may  neverthe- 
less be  larceny,  for  the  fraud  vitiates  the  transaction,  the  owner  is 
still  deemed  to  retain  a  constructive  possession  of  the  property,  and 
the  conversion  and  taking  of  it  by  the  defendant  is  deemed  to  con- 
stitute such  a  trespass  to  that  possession  as  is  essential  to  the  crime 
of  larceny.^^  And  the  same  theory  of  constructive  possession  in  the 
owner  and  trespass  thereto  is  deemed  in  most  jurisdictions,  with  the 
other  essential  elements  in  such  cases,  to  support  the  rule  that  there 
may  be  larceny  where  property  has  been  mislaid  or  even  lost.^^ 

§  3051.  The  carrying  away. — The  carrying  away  of  the  property 
is  an  element  of  the  offense  as  essential  as  any  other.  ^'^  But  any  re- 
moval of  the  property  such  as  works  a  complete  severance  from  the 
possession  of  the  owner  is  generally  sufficient.-**  Thus,  a  very  slight 
removal,^^  and  a  mere  temporary  possession  of  the  property  by  the 


"See,  §  3048;  also,  Crum  v.  State. 
148  Ind.  401,  47  N.  E.  833;  Huber  v. 
State,  57  Ind.  341,  26  Am.  R.  57; 
Fleming  v.  State,  136  Ind.  149,  36  N. 
E.  154;  Grunson  v.  State,  89  Ind. 
533,  46  Am.  R.  178;  Hecox  v.  State, 
105  Ga.  625,  31  S.  E.  592;  People  v. 
Rae,  66  Cal.  423,  6  Pac.  1,  56  Am.  R. 
102;  People  v.  Montarial,  120  Cal. 
691,  53  Pac.  355;  People  v.  Tomlin- 
son,  102  Cal.  19,  36  Pac.  506.  The 
subject  is  well  explained  in  the  first 
and  last  Indiana  cases  and  the  last 
California  case  above  cited.  See  also, 
Gillet  Cr.  Law,  §  540. 

"  See,  Tanner  v.  Commonwealth, 
14  Gratt.  (Va.)  635;  State  v.  Mar- 
tin, 28  Mo.  530;  Lamb  v.  State,  40 
Neb.  312,  58  N.  W.  963;  Pritchett  v. 
State,  2  Sneed  (Tenn.)  285,  62  Am. 
Dec.  468;  Pyland  v.  State,  4  Sneed 
(Tenn.)  357;  but  compare.  Porter  v. 
State,  Mart.  &  Yerg.  (Tenn.)  226; 
also.  State  v.  England,  8  Jones  L. 
(N.  Car.)  399,  80  Am.  Dec.  334. 

"  Mizell  v.  State,  38  Fla.  20,  20  So. 
769;  Harrison  v.  People,  50  N.  Y. 
518,  10  Am.  R.  517;  Eckels  v.  State, 
20  Ohio  St.  508;  Wright  v.  State,  18 


Tex.  App.  358,  365;  Sharp  v.  State, 
29  Tex.  App.  211,  213,  15  S.  W.  176, 
177;  State  v.  Wingo,  89  Ind.  204, 
207;  Starck  v.  State,  63  Ind.  285; 
State  V.  Craige,  89  N.  Car.  475,  45 
Am.  R.  698;  Commonwealth  v.  Luck- 
is,  99  Mass.  431,  96  Am.  Dec.  769; 
Gettinger  v.  State,  13  Neb.  308,  14 
N.  W.  403;  State  v.  Wilson,  1  N.  J. 
L.  439,  1  Am.  Dec.  216;  State  v.  Hig- 
gins,  88  Mo.  354. 

="  State  V.  Taylor,  136  Mo.  66,  37 
S.  W.  907;  Edmonds  v.  State,  70  Ala. 
8,  9;  State  v.  Seagler,  1  Rich.  L.  (S. 
Car.)  30;  State  v.  Gilbert,  68  Vt.  188, 
34  Atl.  697;  Gettinger  v.  State,  13 
Neb.  308,  14  N.  W.  403. 

=' Gettinger  v.  State,  13  Neb.  308, 
14  N.  W.  403;  State  v.  Green.  81  N. 
Car.  560;  State  v.  Higgins.  88  Mo. 
354;  Eckels  v.  State.  20  Ohio  St. 
508;  State  v.  Chambers,  22  W.  Va. 
779,  46  Am.  R.  550;  but  see,  Ed- 
monds V.  State,  70  Ala.  8,  45  Am.  R. 
67;  Commonwealth  v.  Luckis,  99 
Mass.  431,  96  Am.  Dec.  769;  State  v. 
Jones,  65  N.  Car.  395;  People  v. 
Meyer,  75  Cal.  383,  17  Pac.  431. 


3052.] 


LAKCENY. 


360 


thief^^  may  be  sufficient.  The  authorities  already  cited  in  the  notes 
will  suffice  as  illustrations  of  what  is  or  is  not  sufficient  in  this  re- 
spect.^' 

§  3052.  The  property — Value — Identification. — As  a  general  rule 
any  personal  property  may  be  the  subject  of  larceny.^*  But  at  com- 
mon law  choses  in  action  were  not,-^  and  animals  ferae  naturae  or 
those  of  a  so-called  base  nature,  including  dogs,  were  held  not  to  be 
the  subject  of  larceny  in  most  of  the  earlier  cases,^^  but  a  more 
liberal  rule  now  prevails  in  regard  to  dogs,  especially  where  they  are 
regarded  as  personal  property  and  taxed  as  such.^^  Property  an- 
nexed to  the  freehold  or  savoring  of  the  realty  is  not  the  subject  of 
larceny  at  common  law  unless  already  severed. ^^  But  this  rule  has 
been  criticized  and  statutes  in  some  of  the  states  change  the  com- 
mon law  rule  in  some  respects.-^  The  property  must  be  of  some 
value.^°  But  evidence  of  the  precise  value  of  property  having  some 
intrinsic  value  is  unnecessary^^  unless  the  grade  of  the  offense  or  the 


"  Harrison  v.  People,  50  N.  Y.  518; 
State  v.  Jackson,  65  N.  Car.  305; 
Eckels  V.  State,  20  Ohio  St.  508. 

=^  See  also  authorities  reviewed  in 
88  Am.  St.  584,  585,  note. 

"  See,  for  example,  State  v.  Hecox, 
83  Mo.  531;  State  v.  Craige,  89  N. 
Car.  475,  45  Am.  R.  698;  Common- 
wealth V.  Coffee,  9  Gray  (Mass.) 
139;  Jolly  v.  United  States,  170  U.  S. 
402,  18  Sup.  Ct.  624;  State  v.  Well- 
man,  34  Minn.  221,  25  N.  W.  395; 
People  V.  Williams,  24  Mich.  156,  9 
Am.  R.  119. 

^Culp  V.  State,  1  Port.  (Ala.)  33, 
26  Am.  Dec.  357;  United  States  v. 
Moulton,  5  Mas.  (U.  S.)  537;  see  for 
illustrations  of  what  are  and  what 
are  not  within  this  rule,  88  Am.  St. 
587,  note. 

="  State  V.  Murphy,  8  Blackf. 
(Ind.)  498;  State  v.  Doe,  79  Ind.  9, 
41  Am.  R.  599;  State  v.  Lymus,  26 
Ohio  St.  400,  20  Am.  R.  772;  Norton 
v.  Ladd,  5  N.  H.  203,  20  Am.  Dec. 
573;  State  v.  Turner,  66  N.  Car.  618; 
State  V.  Holder,  81  N.  Car.  527,  31 


Am.  R.  517;  Mullaly  v.  People,  86 
N.  Y.  365. 

''  Hamby  v.  Samson,  105  Iowa  112, 
74  N.  W.  918,  67  Am.  St.  285;  Har- 
rington V.  Miles,  11  Kans.  480,  15 
Am.  R.  355;  State  v.  Langford,  55  S. 
Car.  322,  33  S.  E.  370;  Common- 
wealth V.  Hazelwood,  84  Ky.  681,  2 
S.  W.  489;  Mullaly  v.  People,  86  N. 
Y.  365;  Hurley  v.  State,  30  Tex.  App. 
333,  17  S.  W.  455,  28  Am.  St.  916. 

2^  Holly  V.  State,  54  Ala.  238;  Lang- 
ston  V.  State,  96  Ala.  44,  11  So.  334; 
Jackson  v.  State,  11  Ohio  St.  104; 
Harberger  v.  State,  4  Tex.  App.  26, 
30  Am.  R.  157. 

-'  See,  88  Am.  St.  591,  note. 

^^Lane  v.  State,  113  Ga.  1040,  39 
S.  E.  463;  State  v.  Lambert,  21  Mo. 
App.  301;  People  v.  Loomis,  4  Den. 
(N.  Y.)  380;  Parker  v.  State,  110 
Ala.  688,  20  So.  1022. 

=^  State  V.  Slack,  1  Bailey  L.  (S. 
Car.)  330;  see  also,  Pooler  v.  State, 
97  Wis.  627,  73  N.  W.  336;  Common- 
wealth V.  Riggs,  14  Gray  (Mass.) 
376;  Commonwealth  v.  McKenney,  9 


361 


OWNERSHIP. 


[§  3053. 


punishment  or  penalty  depends  upon  the  value,  in  which  case  it  is 
necessary  to  prove  such  value  as  will  bring  the  case  within  the  stat- 
ute.^^  The  identity  of  the  property  must  be  established,  and  a  vari- 
ance in  the  description  may  be  fatal.^^  The  property  need  not,  ordi- 
narily, be  produced  in  court,^*  and  it  may  frequently  be  identified  by 
marks  or  brands  thereon.^^  So,  it  has  been  held  that  a  statute  re- 
quiring marks  and  brands  to  be  recorded  makes  the  record  thereof 
competent  evidence.^® 

§  3053.  Ownership. — As  a  general  rule  the  property  must  be 
owned  by  some  one  other  than  the  thief.^^  But  there  are  exceptional 
cases  in  which  one  may  be  guilty  of  larceny  in  stealing  his  own 
property  when  it  is  done  with  the  intent  of  charging  another,  as  the 
bailee,  for  instance,  with  the  value  of  the  property.^®  And  it  is  not 
essential  that  the  thief  should  know  who  is  the  true  o^^^ler  if  he 
knows  that  the  property  is  not  his  own  and  he  takes  it  to  deprive 
the  owner  of  it,  whoever  he  may  be.^"    A  special  ownership  is  suffi- 


Gray  (Mass.)  114;  Whalen  v.  Com- 
monwealth, 90  Va.  544,  19  S.  E.  182. 

^-  State  V.  McCarty,  73  Iowa  51,  34 
N.  W.  606;  Whitehead  v.  State,  20 
Fla.  841;  State  v.  Doepke,  68  Mo. 
208,  30  Am.  R.  785;  as  to  evidence 
to  show  value,  see,  State  v.  Brown, 
55  Kans.  611,  40  Pac.  1001;  People 
V.  Cole.  54  Mich.  238,  19  N.  W.  968; 
Commonwealth  v.  Stebbins,  8  Gray 
(Mass.)  492. 

'^  Wiley  V.  State,  74  Ga.  840;  Rob- 
ertson V.  State,  97  Ga.  206,  22  S.  E. 
974;  State  v.  Jackson,  30  Me.  29; 
Hooker  v.  State,  4  Ohio  348;  Banks 
V.  State,  28  Tex.  644;  Keating  v. 
People,  160  111.  480,  43  N.  E.  724;  see 
also,  Johnson  v.  State,  119  Ga.  257, 
45  S.  E.  960. 

=*  SpittorfE  V.  State,  108  Ind.  171,  8 
N.  E.  911;  Moore's  Case,  2  Leigh 
(Va.)  701. 

^  State  V.  Ballard.  104  Mo.  634,  16 
S.  W.  525.  A  witness  may  describe 
them;  Lockwood  v.  State,  (Tex.)  26 


S.  W.  200;  Tittle  v.  State,  30  Tex. 
App.  597,  17  S.  W.  1118. 

'"  Brooke  v.  People,  23  Colo.  375, 
48  Pac.  502;  Thompson  v.  State,  26 
Tex.  App.  466,  9  S.  W.  760. 

^'People  V.  Mackinley,  9  Cal.  250; 
People  V.  Stone,  16  Cal.  369;  Tervin 
V.  State,  37  Fla.  396,  20  So.  551; 
Adams  v.  State,  45  N.  J.  L.  448; 
State  V.  Fitzpatrick,  9  Houst.  (Del.) 
385,  32  Atl.  1072;  Alfele  v.  Wright, 
17  Ohio  St.  238,  93  Am.  Dec.  615; 
Fields  V.  State,  6  Coldw.  (Tenn.) 
524;  Williams  v.  State,  34  Tex.  558. 

^  Jones  V.  Jones,  71  Cal.  89,  11 
Pac.  817;  State  v.  Quick,  10  Iowa 
451;  Commonwealth  v.  Greene,  111 
Mass.  392;  Commonwealth  v.  Lan- 
nan,  153  Mass.  287,  26  N.  E.  858.  25 
Am.  St.  629;  4  L.  R.  A.  292,  note;  57 
Am.  Dec.  281,  282,  note. 

=^  Tervin  v.  State,  37  Fla.  396,  20 
So.  551;  People  v.  Dunn.  114  Mich. 
355,  72  N.  W.  172;  Lawrence  v. 
State,  20  Tex.  App.  536. 


§  3054.] 


LARCENY. 


363 


cient/°  and  it  has  been  held  that  possession  is  sufficient  evidence  of 
ownership."  But  ownership  must  usually  be  proved  substantially  as 
alleged.*^  And-  the  best  evidence  of  ownership  is  usually  the  instru- 
ment under  which  the  title  is  claimed/^  but  ownership  of  the  per- 
sonal property  in  larceny  cases  may  generally  be  proved  by  parol, 
as  by  evidence  of  possession  and  the  exercise  of  exclusive  control  and 
ordinary  acts  of  ownership.** 

§  3054.     Non-consent.— As  stated  in  the  definition  of  larceny,  the 
property  must  also  be  taken  without  the   owner's   consent.*^    The 


« Littleton  v.  State,  20  Tex.  App. 
168;  State  v.  Moore,  101  Mo.  316,  14 
S.  W.  182;  State  v.  Somerville,  21 
Me.  14;  United  States  v.  Jackson,  29 
Fed.  503. 

"  State  v.  Bishop,  98  N.  Car.  773, 
4  S.  E.  357;  see  also,  Quinn  v.  Peo- 
ple, 123  111.  333,  15  N.  E.  46;  but 
compare,  State  v.  Repp,  104  Iowa 
305,  73  N.  W.  829,  65  Am.  St.  463. 

^-  McDowell  v.  State,  68  Miss.  348, 
8  So.  508;  Clark  v.  State,  29  Tex. 
App.  437,  16  S.  W.  171;  State  v.  Bur- 
gess. 74  N.  Car.  272;  Commonwealth 
V.  Trimmer,  1  Mass.  476;  State  v. 
McCoy,  14  N.  H.  364;  but  compare. 
People  V.  Nunley,  142  Cal.  105,  75 
Pac.  676;  State  v.  Ireland,  (Idaho) 
75  Pac.  257. 

"Edwards  v.  State,  29  Tex.  App. 
452,  16  S.  W.  98. 

**  Morris  v.  State,  84  Ala.  446,  4 
So.  912;  State  v.  Robinson,  35  La. 
Ann.  964;  Ledbetter  v.  State,  35  Tex. 
195,  32  S.  W.  903;  State  v.  Bishop, 
98  N.  Car.  773,  4  S.  E.  357.  In  a  re- 
cent case,  which  was  a  prosecution 
for  larceny  of  clothing  from  a  rail- 
road car,  the  ownership  was  laid  in 
the  Lake  Shore  and  Michigan  South- 
ern Railway  Company,  and  several 
witnesses  testified  to  the  larceny 
from  the  car,  which  was  broken  open 
in  the  railroad  yards.  Defendant 
confessed  to  a  special  agent  of  the 
company  that  he  committed  the  lar- 


ceny "up  there  in  the  yard,"  and  on 
trial  did  not  testify  or  call  a  wit- 
ness. It  was  held  that  the  jury  were 
warranted  in  finding  the  averment 
of  ownership  proved;  and  in  the 
same  case  an  employe  of  the  shipper 
testified  that  the  box  containing  the 
clothing  was  shipped  on  "the  Lake 
Shore  and  Michigan  Southern  Rail- 
way," and  other  witnesses,  describ- 
ing themselves  as  employes  of  "Lake 
Shore  and  Michigan  Southern,"  tes- 
tified to  facts  showing  the  larceny 
from  a  car  referred  to  as  being  at 
the  time  in  the  "Lake  Shore  Yards." 
It  was  held  that  the  terms  used  by 
the  witnesses  in  referring  to  the 
railroad  being  familiar,  and  there 
being  a  striking  similarity  between 
all  of  them  and  the  name  of  the  rail- 
road as  alleged,  it  was  competent  for 
the  jury  to  infer  that  the  company 
alleged  was  the  bailee  from  whose 
custody  the  goods  were  stolen.  Grif- 
fiths V.  State,  (Ind.)  72  N.  E.  563. 

^=>  Welsh  V.  People,  17  111.  339; 
State  V.  Adams,  115  N.  Car.  775,  20 
S.  E.  722;  People  v.  Hanselman,  76 
Cal.  460,  18  Pac.  425,  9  Am.  St.  238; 
McAdams  v.  State,  8  Lea  (Tenn.) 
456;  Woods  v.  State,  26  Tex.  App. 
490,  10  S.  W.  108;  People  v.  Cruger, 
102  N.  Y.  510,  7  N.  E.  555,  55  Am.  R. 
830.  Non-consent  must  be  proved; 
State  V.  Storts,  138  Mo.  127,  39  S.  W. 
483;  Garcia  v.  State,  26  Tex.  209. 


363 


XOX-COXSEXT — IXTEXT, 


[§  3055. 


mere  fact  that  the  owner  does  not  prevent  the  theft,  when  he  might 
have  done  so,  or  that  he  furnished  an  opportunity  for  its  commission, 
for  the  purpose  of  detecting  and  arresting  the  thief,  does  not  prove  a 
consent  on  the  part  of  the  owner,***  nor  does  the  delivery  of  property 
by  mistake,*^  or,  as  already  shown,  where  it  is  induced  by  fraud  when 
the  fraud  vitiates  the  apparent  consent  and  the  owner  does  not  in- 
tend to  part  with  his  entire  ownership.  The  testimony  of  the  owner, 
•or  of  his  agent  having  management  of  the  property,  is  admissible  to 
prove  non-consent.*^  It  has  been  held  that  other  evidence  of  non- 
consent  is  not  admissible  until  the  failure  to  produce  or  take  the 
testimony  of  the  owner  or  his  agent  has  been  accounted  for.*^  But 
when  this  has  been  done,  or,  if  it  is  not  required,  the  non-consent 
may  be  shown  by  competent  circumstantial  evidence  as  well  as  by 
direct  evidence.^*'  So,  it  may  be  showTi  by  the  declarations  of  the 
accused.^^ 

§  3055.     The  intent. — The  requisite  felonious  intent  must  be  shown 
beyond  a  reasonable  doubt. ^-    But  it  may  be  inferred  from  circum- 


«Varner  v.  State,  72  Ga.  745; 
State  v.  Adams,  115  N.  Car.  775,  20 
S.  E.  722;  see  also,  Pigg  v.  State,  43 
Tex.  108;  Alexander  v.  State,  12  Tex. 
540;  Conner  v.  State,  24  Tex.  App. 
245,  6  S.  W.  138;  People  v.  Hansel- 
man,  76  Cal.  460,  18  Pac.  425,  9  Am. 
St.  238;  but  compare.  State  v.  Hull, 
33  Ore.  56,  54  Pac.  159,  72  Am.  St. 
694;  McAdams  v.  State,  8  Lea 
(Tenn.)  456;  Williams  v.  State,  55 
Ga.  391;  Speiden  v.  State,  3  Tex. 
App.  156,  30  Am.  R.  126;  Rex  v.  Mac- 
danlel,  2  East  P.  C.  665;  Reg.  v. 
Reeves,  5  Jur.  N.  S.  716. 

*^  Bailey  v.  State,  58  Ala.  414; 
Cooper  V.  Commonwealth,  110  Ky. 
123,  22  Ky.  L.  R.  1627,  60  S.  W.  938; 
State  V.  Ducker,  8  Ore.  394,  34  Am. 
B.  590;  People  v.  Miller,  4  Utah  410, 
11  Pac.  514;  Fulcher  v.  State,  32 
Tex.  Cr.  App.  621,  25  S.  W.  625; 
Wolf  stein  v.  People,  6  Hun  (N.  Y.) 
121. 

**  State  v.  Moon,  41  Wis.  684;  Bub- 
ster  v.  State,  33  Neb.  663,  50  N.  W. 


953;  Wilson  v.  State,  12  Tex.  App. 
481. 

*■■' State  V.  Osborne,  28  Iowa  9; 
State  V.  Morey,  2  Wis.  (362)  494; 
see  also,  Rema  v.  State,  52  Neb.  375, 
72  N.  W.  474. 

"■"  Carroll  v.  People,  136  111.  456,  27 
N.  E.  18;  State  v.  Porter,  26  Mo. 
201;  State  v.  Skinner,  29  Ore.  599, 
46  Pac.  368;  Files  v.  State,  36  Tex. 
Cr.  App.  206,  36  S.  W.  93;  Rains  v. 
State,  7  Tex.  App.  588;  Sapp  v. 
State,  (Tex.  Cr.  App.)  77  S.  W.  456. 

"People  V.  Dean,  58  Hun  (N.  Y.) 
610,  12  N.  Y.  S.  749. 

"Long  V.  State,  11  Fla.  295,  297; 
Phelps  V.  People,  55  111.  334;  Britt 
V.  State,  21  Tex.  App.  215;  Waidley 
V.  State,  34  Neb.  250,  252,  51  N.  W. 
830;  Micheaux  v.  State,  30  Tex.  App. 
660,  18  S.  W.  550;  Pence  v.  State, 
110  Ind.  95,  10  N.  E.  919;  State  v. 
Fitzpatrick,  9  Houst.  (Del.)  385,  32 
Atl.  1072;  Green  v.  State,  (Tex.  Cr. 
App.)  33  S.  W.  120;  Truslow  v. 
State,  95  Tenn.  189,  31  S.  W.  987; 


§  3055.] 


LARCENY. 


364 


stances.  What  is  necessary  to  constitute  such  intent  as  a  matter  of 
law  is  a  question  for  the  court,^^  but  whether  it  existed  in  the  par- 
ticular case  is  a  question  for  the  jury.^*  Evidence  of  a  secret  wrong- 
ful taking  of  the  goods  without  the  owner's  consent,  and  of  an  at- 
tempt to  conceal  them  or  to  prevent  the  owner  from  finding  them 
has  been  held  to  be  relevant.^^  "Facts  or  declarations  prior  or  subse- 
quent to  the  larceny  may  be  proved  if  a  part  of  the  res  gestae.  From 
these  a  felonious  intent  may  be  inferred.  But  the  facts  to  sustain  a. 
conviction  of  larceny  must  show  an  intention  to  commit  that  crime 
and  not  some  other  similar  offense."^®  In  order  to  rebut  the  infer- 
ence of  a  felonious  intent  the  accused  is  usually  permitted  to  testify 
that  he  had,  or  believed  he  had,  and  claimed  in  good  faith  a  title  to 
the  property  from  its  owner,^^  or  that  he  took  it  for  an  innocent  pur- 
pose,^* or  in  an  open  manner,  to  satisfy  a  claim  against  the  owner,^* 
or  because  he  believed  it  to  be  his  own.®"  So,  the  intoxication  or 
mental  weakness  of  the  accused  before  the  taking  may  usually  be 
shown  for  the  same  purpose.®^ 


State  V.  Ravenscraft,  62  Mo.  App. 
109;  People  v.  Hendrickson,  18  App. 
Div.  (N.  Y.)  404,  46  N.  Y.  S.  402. 

^^Snoddy  v.  State,  75  Ala.  23; 
State  V.  Hinnant,  120  N.  Car.  572,  26 
S.  E.  643. 

^^Hart  v.  State,  57  Ind.  102;  Rob- 
inson V.  State,  113  Ind.  510,  16  N.  E. 
184;  People  v.  Swalm,  80  Cal.  46,  22 
Pac.  67,  13  Am.  St.  96;  State  v.  Bry- 
ant, 74  N.  Car.  124;  State  v.  McAn- 
drews,  15  R.  I.  30;  People  v.  Griffith, 
77  Mich.  585,  43  N.  W.  1061;  Com- 
monwealth V.  Steimling,  156  Pa.  St. 
400,  27  Atl.  297;  Booth  v.  Common- 
wealth, 4  Gratt.  (Va.)  525. 

^=Long  V.  State,  11  Fla.  295,  297; 
but  it  is  not  absolutely  necessary 
that  the  taking  should  be  secret. 
Talbert  v.  State,  121  Ala.  33,  25  So. 
690.  And  it  has  been  held  that  a 
wrongful  taking  without  the  own- 
er's consent,  with  no  apparent  pur- 
pose of  returning  the  property,  is,  in 
the  absence  of  explanation,  sufficient 
evidence  from  which  the  felonious 
intent    may   be    inferred.     State    v. 


Davis,  38  N.  J.  L.  176;  Robinson  v. 
State,  113  Ind.  510,  512,  16  N.  E.  184. 

■>"  Pence  v.  State,  110  Ind.  95,  99, 
10  N.  E.  919;  Underbill  Cr.  Ev., 
§  292. 

"State  v.  Williams,  95  Mo.  247, 
250,  8  S.  W.  217;  Commonwealth  v. 
Stebbins,  8  Gray  (Mass.)  492,  495; 
see  also.  People  v.  Slayton,  123  Mich. 
397.  82  N.  W.  205,  81  Am.  St.  211. 

="  Brooks  v.  State,  (Tex.  Cr.  App.) 
27  S.  W.  141.  Declarations  of  a  de- 
ceased owner  of  property  alleged  to 
have  been  stolen  that  he  gave  it  to 
the  accused  held  admissible  in.  Peo- 
ple V.  Doyle,  58  Hun  (N.  Y.)  535, 
538,  12  N.  Y.  S.  836. 

="  People  V.  Husband,  36  Mich.  306, 
308. 

""State  V.  Daley,  53  Vt.  442,  444; 
Hunter  v.  State,  (Tex.  Cr.  App.)  37 
S.  W.  323;  Black  v.  State,  38  Tex. 
Cr.  App.  58,  41  S.  W.  606;  State  v. 
Ravenscraft,  62  Mo.  App.  109;  see 
also,  88  Am.  St.  604,  605,  note. 

"'Robinson  v.  State,  113  Ind.  510, 
513;  16  N.  E.  184;  Wood  v.  State,  34 
Ark.  341,  36  Am.  R.  13. 


365  THE  INTENT — FRAUD.  [§  3056. 

§  3056.    The  intent — Possession  obtained  by  fraud. — The  offense  of 

larceny  at  common  law  is  established  so  far  as  the  question  of  in- 
tent is  concerned,  by  proof  on  the  part  of  the  prosecution  showing 
that  the  defendant  obtained  possession  of  the  property  by  some  trick, 
fraudulent  device,  or  artifice,  animo  furandi,  with  the  intention  at 
the  time  of  subsequently  appropriating  it  to  his  own  use.*'-  But 
while  this  is  generally  held  where  the  felonious  intent  is  shown 
to  exist  at  the  time  of  fraudulently  obtaining  the  possession,  the 
weight  of  authority  seems  to  be  to  the  effect  that  the  felonious  in- 
tent must  exist  at  such  time.*'^  So,  where  the  defendant  found  the 
property,*'*  or  took  it  up  as  an  estray,*'^  or  otherwise  obtained  pos- 
session of  it  under  circumstances  consistent  with  his  innocence,*'^ 
evidence  that  he  entertained  a  felonious  intent  at  the  time  of  takinff 
it  is  necessary  to  make  out  the  crime  of  larceny,  proof  of  a  subse- 
quent appropriation  not  being  sufficient.*'^  Proof  that  the  property 
bore  the  name  of  the  owner  is  not  alone  sufficient  to  establish  this 
fact  where  it  appears  that  the  defendant  could  not  read,^^  and  in  the 
absence  of  proof  that  he  knew  the  owner,  evidence  that  the  defend- 
ant secreted  the  property  and  denied  having  it  has  been  held  insuifi- 

«^  People  V.  Miller,  169  N.  Y.  339,  v.  Coombs,  55  Me.  477,  92  Am.  Dec. 

62  N.  E.  418,  88  Am.  St.  546;  People  610;    Commonwealth    v.    White,    11 

V.  Laurence.  137  N.  Y.  517,  33  N.  E.  Cush.   (Mass.)   483;  Beatty  v.  State, 

547;  People  v.  Morse,  99  N.  Y.  662,  2  61  Miss.  18;  see  also,  Hernandez  v. 

N.  E.  45;  Justices  &c.  v.  Henderson,  State,  20  Tex.  App.  151. 

90  N.  Y.  12,  43  Am.  R.  135;  Loomis  "Bailey    v.    State,    52    Ind.    462; 

V.  People,  67  N.  Y.  322,  23  Am.  R.  Wolfington    v.    State,    53    Ind.    343; 

123;   Hildebrand  v.  People,  56  N.  Y.  State  v.  Clifford,  14  Nev.  72,  33  Am. 

394,  15  Am.  R.  435;  Smith  v.  People,  R.  526;  Commonwealth  v.  Titus,  116 

53  N.  Y.  Ill,  13  Am.  R.  474;  People  Mass.  42,  17  Am.  R.  138;  88  Am.  St. 

V.  McDonald,  43  N.  Y.  61;   Huber  v.  603,  note. 

State,  57  Ind.  341;  Fleming  v.  State,  «=  Lamb  v.  State,  40  Neb.  312,  58 

136  Ind.  149,  36  N.  E.  154;  Common-  N.    W.    963;    McCarty    v.    State,    36 

wealth  v.  Barry,  124  Mass.  325;  Reg.  Tex.    Cr.    App.    135,    35    S.    W.    994; 

V.  Buckmaster,  16  Cox  Cr.  Cas.  339.  Starck  v.  State,  63  Ind.  285. 

«^  People   V.    Laurence,    137    N.    Y.  ^'Keely  v.  State,  14  Ind.  36;   Hart 

517,  33  N.  E.  547;    People  v.  Camp-  v.   State,   57   Ind.    102;    Umphrey  v. 

bell,  127  Cal.  278,  59  Pac.  593;  State  State,  63  Ind.  223. 

V.  McRae,  111  N.  Car.  665.  16  S.  E.  "See  also,  Bailey  v.  State,  52  Ind. 

173;   Doss  v.  People,  158  111.  660,  41  462;    Wolfington    v.    State,    53    Ind. 

N.  E.  1093,  49  Am.  St.  180;  Blunt  v.  343,  346,  in  addition  to  authorities 

Commonwealth,  4  Leigh   (Va.)   689,  cited  in  last  two  preceding  notes. 

26  Am.  Dec.  341;  but  compare,  State  "^Wolfington  v.  State.  53  Ind.  343. 


§§  3057,  3058.]  larceny.  36& 

cient  of  itself  to  prove  his  guilt  of  the  crime  of  larceny.^^  Proof  of 
the  removal  and  malicious  destruction  of  property  does  not  estab- 
lish the  felonious  intent  to  steal  it,  which  is  a  necessary  ingredient 
in  this  crime.''*' 

§  3057.  Other  crimes. — ^The  general  rule,  elsewhere  considered,  to 
the  effect  that  the  commission  by  the  defendant  of  other  distinct  and 
independent  crimes  does  not  prove  that  the  defendant  committed 
the  crime  in  question  and  that  evidence  thereof  is  not,  ordinarily, 
admissible,  finds  a  frequent  application  in  larceny  cases.'^  But  the 
exception  or  the  other  branch  of  the  rule,  admitting  evidence  of 
other  offenses  under  certain  circumstances  and  for  certain  purposes 
also  finds  a  frequent  application  in  such  cases.'^^  The  general  treat- 
ment of  the  subject  elsewhere,''^  however,  renders  it  unnecessary  to 
do  more  in  this  connection  than  to  refer  to  a  few  of  the  many  cases 
in  which  the  doctrines  in  question  have  been  applied  in  prosecu- 
tions for  larceny.  This  is  done  in  the  first  two  notes  to  this  section. 

§  3058.  Recent  possession  of  stolen  goods. — Another  subject  that : 
has  already  received  full  consideration  in  a  general  way  is  that  of 
the  admissibility  and  effect  of  evidence  of  the  recent  possession  of 
stolen  goods.^*  A  few  additional  remarks,  however,  with  particu- 
lar reference  to  such  evidences  in  larceny  cases,  may  not  be  out  oi' 
place.  As  already  shown,  there  is  some  conflict  among  the  authorities 
as  to  whether  there  is  any  true  presumption  from  the  mere  recent 

«' Bailey    v.    State,    52    Ind.    462;  14  N.  E.  198;  People  v.  Dowling,  8f 

Starck  v.   State,  63  Ind.  285;    State  N.  Y.  478;  Snapp  v.  Commonwealth, 

V.  Conway,  18  Mo.  321.  82  Ky.  173;  State  v.  Weaver,  104  N. 

'"Pence  v.   State,  110  Ind.  95,  99,  Car.    758;    10    S.    E.    486;    State    v. 

10  N.  E.  919.  Schaffer,  70  Iowa  371,  30  N.  W.  639; 

"'Dove  v.  State,  37  Ark.  261;   Mc-  Ballow  v.   State,   42   Tex.   Cr.   App. 

Queen  v.  State,  108  Ala.  54,  18  So.  263,  58  S.  W.  1023;  Mclver  v.  State, 

843;  People  v.  Tucker,  104  Cal.  440.  (Tex.  Cr.  App.)   60  S.  W.  50;  John- 

38  Pac.  195;  State  v.  Vinson,  63  N.  son  v.  State,  148  Ind.  522,  525,  47  N. 
Car.  335;  State  v.  Goetz,  34  Mo.  85;  E.  926;  see  also  dissenting  opinion 
Miller  v.  Commonwealth,  78  Ky.  16,  in.  Strong  v.  State,  86  Ind.  208,  ap- 

39  Am.  R.  194;  Wilcox  v.  State,  3  proved  in,  Crum  v.  State,  148  Ind. 
Heisk.    (Tenn.)    110,   116;    Links  v.  401,  47  N.  E.  833. 

State,    13    Lea    (Tenn.)    701;    Alex-  "  See,  chap.  127,  §  2720;  also  chap, 

ander  v.  State,  21  Tex.  App.  406;  17  138,  §  2917. 

S.  W.  139;  State  v.  Johnson,  38  La.  '*  See,  chap.  127,  §  2725;  also  chap. 

Ann.  686.  138,  §  2918. 
"People  v.  Dimick,  107  N.  Y.  13, 


367 


RECENT   POSSESSION   OF   STOLEN   GOODS. 


[§    3058. 


possession  of  stolen  goods,  and  as  to  whether  conviction  can  be  sus- 
tained without  additional  evidence  upon  the  subject.  It  is  gen- 
erally held,  however,  in  larceny  as  well  as  other  cases,  that  it  is  at 
least  a  circumstance  to  be  considered,  and  its  weight  and  that  of  any 
explanation  given  by  the  accused  should  usually  be  left  to  the  jury.'^^ 
In  a  recent  case,  on  the  trial  of  a  prosecution  for  larceny  of  a  bill 
of  a  certain  denomination,  evidence  that  shortly  after  the  commission 
of  the  offense  the  wife  of  the  accused  was  in  possession  of  a  bill  of 
the  same  denomination,  and  that  she  sent  it  by  another  person  to 
the  bank  to  be  changed,  was  held  admissible.'^®  It  is  generally  in- 
competent to  show  that  the  accused  had  in  his  possession  other  goods 
than  those  stolen  at  the  time  in  question.'^  But  such  evidence  has 
been  held  admissible  in  some  cases  for  certain  purposes.'^*  So,  where 
it  is  shown  that  the  other  goods  were  stolen  at  the  same  time,  the 
recent  possession  of  them  by  the  accused  may  often  be  shown  as 
tending  to  connect  him  with  the  offense.''^ 


^Stafford  v.  State,  (Ga.)  48  S.  E. 
903;  State  v.  Lax,  (N.  J.)  59  Atl.  18; 
State  V.  Ireland,  (Idaho)  75  Pac. 
257;  State  v.  King,  122  Iowa  1,  96 
N.  W.  712;  but  the  corpus  delicti 
must  be  proved;  Reg.  v.  Hall,  1  Cox 
Cr.  Cas.  231;  Thomas  v.  State,  109 
Ala.  25,  19  So.  403;  Hand  v.  State, 
110  Ga.  257,  34  S.  E.  286;  Bailey  v. 
State,  52  Ind.  462,  21  Am.  R.  182; 
but  this  may  be  done  by  circumstan- 
tial evidence;  State  v.  Clark,  4 
Strob.  L.  (S.  Car.)  311;  State  v. 
Peterson,  38  Kans.  204;  16  Pac.  263; 
Johnson  v.  State,  47  Ala.  62;  State 
V.  Minor,  106  Iowa  642,  77  N.  W. 
330;  Reg.  v.  Burton,  6  Cox  Cr.  Cas. 
293. 

'"Buckine  v.  State,  (Ga.)  49  S.  E. 
257;  in  a  prosecution  for  larceny 
where  there  was  evidence  that  de- 
fendant took  a  gold  piece  of  a  cer- 
tain denomination  from  witness' 
person  while  they  were  together  in 
a  room,  and  defendant  was  there- 
upon   arrested,    further    testimony 


that  about  half  an  hour  after  the 
arrest  the  policeman  and  witness 
returned  to  the  room,  and,  upon 
search,  found  a  gold  piece  of  the 
same  denomination  secreted  on  the 
dresser,  was  held  admissible,  al- 
though the  witness  could  not  iden- 
tify the  particular  piece  of  money  as 
his  own;  State  v.  Johnson,  (Wash.) 
78  Pac.  903. 

■•  Reg.  V.  Oddy,  T.  &  M.  593,  5  Cox 
Cr.  Cas.  210. 

•'^  See,  State  v.  Ditton,  48  Iowa 
677;  State  v.  Moore,  101  Mo.  316,  14 
S.  W.  182;  State  v.  Murphy,  84  N. 
Car.  742;  Yarborough  v.  State,  41 
Ala.  405;  State  v.  Robinson,  35  S. 
Car.  340;  Slaughter  v.  Common- 
wealth, 22  Ky.  L.  R.  679,  58  S.  W. 
588. 

'"Yarborough  v.  State,  41  Ala. 
405;  Johnson  v.  State,  148  Ind.  522, 
47  N.  E.  926;  People  v.  Robles,  34 
Cal.  591;  Wormly  v.  State,  70  Ga. 
721;  State  v.  Weaver,  104  N.  Car. 
758,  10  S.  E.  486. 


§    3059.]  LARCENY.  368 

§'  3059.  Defenses. — As  a  general  rule,  it  may  be  said  that  the  de- 
fendant may  introduce  any  proper  evidence  legitimately  tending  to 
prove  that  he  did  not  commit  the  crime  for  which  he  is  on  trial,  or 
to  rebut  the  evidence  introduced  by  the  state.  Thus,  he  may  ex- 
plain his  possession  of  the  stolen  goods,^"  and  upon  this  subject  it  is 
said  in  a  recent  text  book:^^  "He  may  prove  that  he  bought  the 
goods,^2  ^;hat  he  offered  to  pay  the  owner  for  them,83  ^p  ^^^t  he  be- 
came possessed  of  them,  believing  he  was  the  o^mer's  agent.^*  These 
and  other  explanatory  facts  may  be  shown  even  where  the  defendant 
has  failed  or  refused  to  give  a  satisfactory  explanation  of  the  pos- 
session of  the  property  when  it  was  first  found  in  his  possession.*^ 
If  the  explanatory  evidence  creates  a  reasonable  doubt  in  the  minds 
of  the  jurors  that  he  stole  the  property,  he  should  be  acquitted.**'  It 
is  not  absolutely  requisite  that  the  accused  should  prove  that  his 
possession  was  honest.  It  is  sufficient  to  acquit  him  if  he  gives  a 
natural,  reasonable  and  probable  explanation  which  the  prosecution 
does  not  show  to  be  false."  Such  an  explanation  may  be  taken  as 
true  if  the  state,  relying  upon  recent  possession  alone,  does  not  prove 
its  falsity  or  attempt  to  do  so.**  If  the  explanation  is  absurd,  unrea- 
sonable or  unsatisfactory  it  is  the  right  of  the  jury,  and  often  their 
duty,  to  disregard  it,  though  no  evidence  in  rebuttal  on  that  point  is 

^^Even  his  own  testimony;   State  64    N.    W.    614;    Gilmore    v.    State, 

V.  Bethel,  97  N.  Car.  459,  1  S.  E.  551.  (Tex.  Cr.  App.)  33  S.  W.  120;  Craw- 

"  Underbill  Cr.  Ev.,  §  302.  ford  v.   State,  113  Ala.   661,  21   So. 

«=  Jones  v.  People,  12  111.  259;   in-  64;  State  v.  Dillon,  48  La.  Ann.  1365, 

eluding    all    pertinent    declarations  20  So.  913. 

made   by   himself   or  the   vendors;  "Hart  v.  State,  22  Tex.  App.  563, 

People  v.  Bowling,  84  N.  Y.  478,  485.  3  S.  W.  741;  Garcia  v.  State,  26  Tex. 

"Hall  V.  State,  34  Ga.  208,  210.  209,   210;    State   v.   Moore,    101   Mo. 

"Lewis  V.  State,  29  Tex.  App.  201,  316,   14  S.  W.   182;    Jones  v.   State, 

15  S.  W.  642;  Chambers  v.  State,  62  30  Miss.   653,   655;    State  v.  Castor, 

Miss.  108.  93  Mo.  242,  250,  5   S.  W.  906;   Yar- 

«=  Harris    v.    State,    15    Tex.    App.  brough  v.  State,  115  Ala.  92,  22  So. 

411.  534. 

*"  State  v.  Peterson,  67  Iowa  564,  «*  People   v.    Hurley,    60    Cal.    74; 

567,   25   N.  W.  780;    Grentzinger  v.  Powell  v.   State,   11   Tex.   App.   401, 

State,   31   Neb.    460,   462,   48   N.   W.  402;  Johnson  v.  State,  12  Tex.  App. 

148;    Clark   v.    State,   30   Tex.   App.  385;    State  v.   Kimble,  34  La.  Ann. 

402,  17  S.  W.  942;    Baker  v.   State,  392,   395;    3   Greenleaf   Ev.    32;    see 

80  Wis.  416,  50  N.  W.   518;    Blaker  also,  Leslie  v.  State.  35  Pla.  171,  17 

v.  State,  130  Ind.  203,  29  N.  E.  1077;  So.  555;  York  v.  State,  17  Tex.  App. 

State  V.  Wilson,  95  Iowa  341,  64  N.  441. 
W.  26;   State  v.  Cross,  95  Iowa  629, 


369 


DEFENSES. 


[§  3059. 


offered.^^  But  when  the  explanation  offered  is  reasonable  and  prob- 
able it  must  be  overcome  and  its  falsity  sho\\'n  by  positive  and  definite 
evidence.  Direct  evidence  is  not  always  essential.  Circumstantial  evi- 
dence will  answer  if  upon  all  the  evidence  the  prosecutor  shall  succeed 
in  convincing  the  jury  of  the  guilt  of  the  prisoner  beyond  a  reasonable 
doubt.'"'*'  His  declarations  explaining  his  possession  are  also  admis- 
sible, in  a  proper  case,  at  least  when  part  of  the  res  gestae.®^  But,  of 
course,  such  declarations  are  not  usually  admissible  when  self-serving 
and  after  he  has  had  time  to  concoct  an  explanation.^-  The  defendant 
may  also  prove  an  alibi.^^  So,  he  may  show  that  he  obtained  the 
consent  of  the  owner,  or,  in  some  cases,  of  the  supposed  owner,^* 
and  other  evidence  tending  to  show  good  faith,  absence  of  any 
felonious  intent  and  facts  inconsistent  with  guilt  may  be  compe- 
tent.^°  So,  while  slight  weakness  of  mind  or  voluntary  intoxication 
will  not  justify  a  crime,  nor  even  excuse  it,  ordinarily,  yet  evidence 
thereof  is  admissible  as  bearing  upon  the  question  of  intent.®''  And 
the  accused  may  likewise  introduce  evidence  of  his  good  character.^^ 


^  Tilly  v.  State,  21  Fla.  242;  see 
also,  to  the  effect  that  the  weight  of 
the  explanation  is  for  the  jury.  State 
V.  Ireland,  (Idaho)  75  Pac.  257; 
State  v.  King,  122  Iowa  1,  96  N.  W. 
712. 

»« Franklin  v.  State,  37  Tex.  Cr. 
App.  312,  39  S.  W.  680;  State  v. 
Schaffer,  70  Iowa  371,  375,  30  N.  W. 
639;  Brown  v.  State,  34  Tex.  Cr. 
App.  150,  29  S.  W.  772;  see  also. 
State  V.  Kimble,  34  La.  Ann.  392; 
Van  Straaten  v.  People,  26  Colo.  184, 
56  Pac.  905. 

"^Henderson  v.  State,  70  Ala.  23; 
Hubbard  v.  State,  109  Ala.  1,  19  So. 
519;  State  v.  Moore,  101  Mo.  316, 
14  S.  W.  182;  Walker  v.  State,  28 
Ga.  254;  State  v.  Daley,  53  Vt.  442, 
38  Am.  R.  694;  Reg.  v.  Abraham, 
2  Car.  &  Kir.  550,  61  E.  C.  L.  550. 

°=  Cooper  V.  State,  63  Ala.  80; 
State  V.  Moore,  101  Mo.  316,  14  S. 
W.  182. 


»'  State  V.  Sidney,  74  Mo.  390;  Wil- 
burn  V.  Territory,  10  N.  Mex.  402, 
62  Pac.  968. 

»^  State  V.  Matthews,  20  Mo.  55; 
but  see,  Drumright  v.  State,  29  Ga. 
430. 

°=See,  State  v.  Eubank,  33  Wash. 
293,  74  Pac.  378;  State  v.  Marquard- 
sen,  7  Idaho  352,  62  Pac.  1034; 
People  v.  Cline,  74  Cal.  575,  16  Pac. 
391;  Jones  v.  State,  30  Miss.  653,  64 
Am.  Dec.  154;  Way  v.  State,  35  Ind. 
409. 

"*=  Robinson  v.  State.  113  Ind.  510, 
16  N.  E.  184;  see  also,  36  L.  R.  A. 
469. 

'*'  People  V.  Hurley,  60  Cal.  74,  44 
Am.  R.  55;  State  v.  Richart,  57  Iowa 
245,  10  N.  W.  657;  Clackner  v.  State, 
33  Ind.  412;  Foster  v.  State,  52  Miss. 
695;  State  v.  Crank,  75  Mo.  406;  but 
see,  Wagner  v.  State,  107  Ind.  71, 
7  N.  E.  896. 


Vol.  4  Elliott  Ev.— 24 


§  3059a.] 


LARCEXy. 


370 


§  3059a.  Miscellaneous — Recent  cases. — It  has  been  held  that  it  is 
sufficient  in  case  of  theft  of  money  from  a  person  to  show  that  any 
part  of  the  money  alleged  in  the  indictment  was  taken,  and  that  the 
fact  that  the  theft  was  committed  after  the  time  alleged  is  no  ground 
for  acquittal.®^  So,  where  the  indictment  charged  the  stealing  of  one 
double  case  silver  watch,  and  the  evidence  showed  that  the  accused 
took  from  the  jeweler's  bench  the  case  and  works,  which  had  been 
separated  for  the  purpose  of  repair,  it  was  held  that  the  variance,  if 
any,  was  not  fatal.^^  The  prosecuting  witness  may  testify  to  the 
ownership  of  the  property."**  Although,  as  already  shown,  there 
must  be  a  carrying  away  or  taking,  it  is  held  in  a  recent  case  that 
there  may  be  a  conviction  notwithstanding  the  money  alleged  to  have 
been  stolen  by  the  defendant  was  never  seen  in  his  possession.^" ^  It  is 
also  held  in  the  same  case  that  although  evidence  of  motive  was  not 
indispensable  it  was  nevertheless  admissible,  and  that  it  was  not 
error  to  admit  evidence  that  the  defendant  was  in  debt  at  the  time 
as  tending  to  some  extent  to  show  a  motive  for  the  crime,  especially 
as  the  evidence  of  the  larceny  by  the  defendant  was  largely  circum- 
stantial. 


"'Green  v.  State,  (Tex.  Cr.  App.) 
86  S.  W.  332;  see  also,  Com.  v. 
Dingman,  26  Pa.  Super.  Ct.  615. 

"^  Patterson  v.  State,  (Ga.)  50  S.  E. 
489;  see  also,  Crawford  v.  State,  94 
Ga.  772,  21  S.  E.  992;  Payne  v.  State, 
140  Ala.  148,  37  So.  74. 

!<»  Bennett  v.  State,  (Ark.)  84  S. 
W.  483. 

"iDemmlck  v.  United  States,  135 
Fed.  257.  For  recent  cases  holding 
the  evidence  sufficient  to  sustain  a 
conviction,  see,  Crockford  v.  State, 
(Neb.)   102  N.  W.  70;   Territory  v. 


Clark,  (N.  Mex.)  79  Pac.  708;  Davis 
V.  Territory,  (Ariz.)  80  Pac.  389; 
Jones  v.  People,  (Colo.)  79  Pac. 
1013;  State  v.  Minck,  (Minn.)  102 
N.  W.  207;  State  v.  Mumford, 
(Kans.)  79  Pac.  669;  Ware  v.  State, 
(Tex.  Cr.  App.)  84  S.  W.  1065.  For 
cases  in  which  the  evidence  was 
held  insufficient,  see,  Wesley  v. 
State,  (Tex.  Cr.  App.)  85  S.  W.  .802; 
Womack  v.  State,  (Tex.  Cr.  App.) 
86  S.  W.  1015;  Brokaw  v.  State, 
(Tex.  Cr.  App.)  85  S.  W.  801;  Bird 
v.  State,  (Fla.)  37  So.  525. 


CHAPTER  CXLVII. 

NUISANCE, 

Sec.  Sec. 

3060.  Generally.  3066.  Obstructing  Wghways. 

3061.  Examples  of  public  nuisance.     3067.  Obstructing    or    polluting    wa- 

3062.  Evidence  for  prosecution.  ters. 

3063.  Evidence  of  reputation.  3068.  Public  indecency. 

3064.  Defenses.  3069.  Storing  explosives. 

3065.  Disorderly  houses. 

§  3060.  Generally. — The  subject  of  this  chapter  in  so  far  as  indi- 
vidual citizens  and  their  rights  and  remedies  are  concerned  has  been 
treated  in  another  volume.^  A  definition  of  a  public  as  well  as  a 
private  nuisance  is  there  given  and  the  general  subject  is  there  treated 
to  such  an  extent  that  comparatively  little  remains  to  be  said  in  this 
connection.  It  may  be  well,  however,  to  give  another  definition  of  a 
public  or  common  nuisance  and  to  further  explain  its  general  nature 
before  considering  the  law  in  detail  with  particular  reference  to 
criminal  prosecutions.  A  public  or  common  nuisance  is  an  "offense 
against  the  public  order  and  economical  regimen  of  the  state,"  being 
either  the  doing  of  a  thing  to  the  annoyance  of  the  citizens  gener- 
ally, and  not  merely  to  some  particular  person,  or  the  neglecting  to 
do  a  thing  which  the  common  good  requires.^  More  particularly,  a 
common  nuisance  "is  said  to  comprehend  endangering  the  public 
personal  safety  or  health ;  or  doing,  causing,  occasioning,  promoting, 
maintaining,  or  continuing  what  is  noisome  and  offensive,  or  annoy- 
ing and  vexatious,  or  plainly  hurtful  to  the  public,  or  is  a  public 
outrage  against  common  decency  or  common  morality,  or  tends 
plainly  and  directly  to  the  corruption  of  the  morals,  honesty,  and 
good  habits  of  the  people ;  the  same  being  without  authority  or  justi- 
fication by  law."^ 

1  Vol.  Ill,  chap  116.  5   Port.    (Ala.)    279,   311;    see   also, 

2  2  Bouvier  L.  Diet.  524;   1  Hawk-  Acme  Fertilizer  Co.  v.  State,    (Ind. 
ins  P.  C.  197;   4  Blackstone  Comm.  App.)  72  N.  E.  1037;  State  v.  Tabler, 
166;  3  Greenleaf  Ev.,  M84;  8  Bacon  (Ind.  App.)  72  N.  E.  1039. 
Abridgment  223;  State  v.  Mayor  &c..  =  Report  of  Mass.   Comr's   on   Cr. 

371 


§§  3061-3063.]  NUISANCE.  372 

§  3061.  Examples  of  public  nuisance. — Among  the  things  that 
most  often  constitute  public  nuisances  are  the  keeping  of  disorderly 
houses,  obstructing  highways  or  navigable  streams  and  waters,  pol- 
luting waters,  maintaining  offensive  and  stagnant  ponds,  making 
noises  and  the  like  so  as  to  disturb  the  public  peace,  being  a  com- 
mon scold,  or  a  common  eavesdropper,  committing  public  indecency 
and  the  storing  and  keeping  of  dangerous  explosives  at  an  improper 
place  so  as  to  endanger  the  public.  So,  public  as  well  as  private 
nuisances  may  arise  from  carrying  on  a  business  or  trade  so  as  to 
create  offensive  and  noxious  smells,  smoke  and  the  like.  The  most 
important  of  these  will  be  considered  in  subsequent  sections. 

§  3062.  Evidence  for  prosecution. — "In  proof  of  the  charge,  evi- 
dence must  be  adduced  to  show,  1st,  that  the  act  complained  of  was 
done  by  the  defendant;  and  this  will  suffice,  though  he  acted  as  the 
agent  or  servant  and  by  the  command  of  another;*  3nd,  that  it  was 
to  the  common  injury  of  the  public,  and  not  a  matter  of  mere  pri- 
vate grievance."^  The  annoyance  must  be  such  and  to  such  a  num- 
ber of  people  that  the  offense  is  to  be  deemed  a  public  rather  than  a 
mere  private  nuisance,  but  it  is  not  necessary  that  it  should  in- 
juriously affect  all  the  people  of  the  state  nor  even  every  member  of 
the  community.*' 

§  3063.  Evidence  of  reputation. — As  a  general  rule  a  nuisance  can- 
not be  shown  by  evidence  of  reputation,  but  there  are  nuisances  in 
which  evidence 'of  the  reputation  of  the  inmates  or  frequenters  of  a 
certain  house  or  place,  and,  perhaps,  even  of  the  reputation  of  such 

Law,  Common  Nuisance,  §  1,  refer-  nis  v.   State,  91   Ind.   291;    Rex.   v. 

red  to  in,  3  Greenleaf  Ev.,  §  184;  for  Neil,   2  Car.  &  P.  485,  12  E.  C.  L. 

other  definitions  see,  Bohan  v.  Port  690.     But  his  act  must  have  been  a 

Jervis  Gas-L.  Co.,  122  N.  Y.  18,  32,  proximate  cause.     State  v.  Holman, 

25  N.  E.  246;   State  v.  Wolf,  112  N.  104  N.  Car.  861,  10  S.  E.  758. 
Car.    889,    17    S.    E.    528;    Common-         =  State  v.    Luce,   9    Houst.    (Del.) 

wealth   V.    Smith,    6    Cush.    (Mass.)  396,    32   Atl.   1076;    State   v.   Wolfe, 

80;  State  v.  Godwinsville  &c.  Co.,  49  112  N.  Car.  889,  17  S.  B.  528;  Innes 

N.  J.  L.  270,  10  Atl.  666.  v.  Newman,   L.  R.   2   Q.  B.    (1894), 

*  State  V.  Bell,  5  Port.  (Ala.)  365;  292;  3  Greenleaf  Ev.,  §  186. 
State  v.  Matthis,  1   Hill    (S.   Car.)         « People  v.  Jackson,  7   Mich.  432, 

37;  Commonwealth  v.  Mann,  4  Gray  74  Am.  Dec.  729;  Hackney  v.  State, 

(Mass.)   213;   see  also,  Rex  v.  Med-  8  Ind.  494;    2  Chitty  Cr.  Law  607; 

ley,  6   Car.   &   P.    292;    or,   notwith-  State  v.   Tabler,    (Ind.  App.)    72  N. 

standing  others   contributed.     Den-  E.  1039,  1040. 


373  REPUTATION-.  [§    3063. 

house  or  place  may  be  admissible.  It  is  said  by  Mr.  Wliarton  that 
"where  an  offense  is  laid  generally  in  the  indictment,  as  where  the 
defendant  is  cliargcd  as  a  common  barrator,  or  a  common  scold, 
or  as  keeping  a  common  gambling  house,  or  disorderly  house,  evi- 
dence of  general  reputation  is  not  admissible,  it  being  necessary 
to  sustain  the  indictment,  that  tlie  particular  facts  which  consti- 
tute the  offense  should  be  proved."^  He  further  says,  however,  that 
on  indictments  for  keeping  houses  of  ill-fame,  when  such  is  the 
statutory  term  describing  the  offense,  the  "ill-fame"  or  bad  reputa- 
tion of  the  house  may  be  put  in  evidence,^  and  that  "the  bad  reputa- 
tion of  the  visitors  is  in  any  view  competent  evidence,"^  but  that  in 
the  case  of  a  disorderly  house  particular  acts  of  disorder  rather 
than  the  reputation  of  the  house  must  be  shown. i**  It  is  generally 
agreed  that  the  reputation  of  the  inmates  and  visitors  is  admissible 
in  a  proper  case,  but  there  is  some  conflict  as  to  the  other  statement 
of  Mr.  ^Miarton  to  the  effect  that  the  reputation  of  the  house  itself 
is  not  admissible  unless  the  statute  clearly  makes  the  reputation  and 
not  merely  the  character  of  the  house  an  element  of  the  offense.  As 
will  be  shown  in  the  section  on  disorderly  houses,  there  are  many 
jurisdictions  in  which  the  reputation  of  the  house  may  be  shown,  and 
in  some  of  them  the  statutes  do  not  seem  to  have  changed  the  com^ 
mon  law. 

'Wharton  Cr.  Law,  §  260;  citing,  ^Citing,    State    v.    Boardman,    64 

Commonwealth  v.  Stewart,  1  S.  &  R.  Me.  523 ;    State  v.  McGregor,  41  N. 

(Pa.)    342;    Archbold   Cr.    PI.    105;  H.  407;   Commonwealth  v.  Gannett, 

Commonwealth  v.  Hopkins,  2  Dana  1  Allen    (Mass.)    7;   Commonwealth 

(Ky.)  418;  but  see.  Kissel  v.  Lewis,  v.    Kimball,    7    Gray    (Mass.)     328; 

156  Ind.  233,  59  N.  E.  478;  World  v.  Harwood   v.   People,   26   N.   Y.    190; 

State,  50  Md.  49;   Fong  Yuk,  In  Re,  Sparks  v.  State,  59  Ala.  82;  O'Brien 

(1901),   8   Br.   Col.    118;    Demartini  v.    People,    28    Mich.    213;    King    v. 

V.    Anderson,    127    Cal.    33,    59    Pac.  State,  17  Fla.  183;   Morris  v.  State, 

207;    State   v.   Hendricks,    15   Mont.  38.  Tex.  603;  Clementine  v.  State,  14 

194,  39  Pac.  94;  see,  20  L.  R.  A.  610-  Mo.  112;    State  v.  Brunell,  29  Wis. 

612,  note.  435;    see    also.    State   v.    McDowell, 

*  Citing,  United  States  v.  Gray,  2  Dudley     (S:    Car.)     346;     Coramon- 

Cranch.    (N.  S.)    675;   United  States  wealth  v.   Clark,   145  Mass.  251,  13 

V.   Stevens,   4   Cranch    (U.   S.)    341;  N.    E.    388;    Howard    v.    People,    27 

Cadwell  v.  State,  17  Conn.  467;  State  Colo.    396,    61    Pac.    595;    Beard    v. 

V.  Morgan,  40  Conn.   44;    People  v.  State,  71  Md.  275,  17  Atl.  1044.  4  L. 

Lockwing,    61    Cal.    380;    People    v.  R.  A.  675. 

Luchanan,    1    Idaho    681;    but    see,  '"Citing,  State  v.  Foley,  45  N.  H. 

Parker  v.  People,  94  111.  App.  648;  466;    United    States    v.    Jourdine,    4 

State  V.   Plant,   67  Vt.   454,   32  Atl.  Cranch  (U.  S.)  338;  Commonwealtn 

237,  48  Am.  St.  821.  v.    Stewart,    1    S.    &   R.    (Pa.)    342; 


§  n064.] 


NUISANCE. 


374 


§  3064.  Defenses. — In  defense,  proper  evidence  is,  of  course,  ad- 
missible to  show  any  facts  tending  to  disprove  or,  in  a  proper  case, 
to  justify  the  charge.^^  But  the  law  does  not,  ordinarily  at  least, 
balance  conveniences,  and  the  defendant  will  not  be  permitted  to 
show  as  a  defense  that  the  public  benefit  resulting  from  his  act  is 
equal  to  the  public  inconvenience  which  arises  from  it.^^  Neither 
is  it  a  good  defense  that  similar  nuisances  are  tolerated  elsewhere 
even  in  the  same  neighborhood.^^  Nor  is  the  motive  or  intent,  as  a 
rule,  material,  for,  even  though  the  act  constituting  the  nuisance  was 
committed  without  any  improper  motive,  this  would  not  be  a  de- 
fense.^* The  fact  that  the  act  is  authorized  by  a  constitutional  and 
valid  enactment  of  the  legislature  will  constitute  a  defense  to  the 
criminal  prosecution  even  though  it  would  otherwise  be  a  public 
nuisance.^^  But  a  right  to  maintain  a  public  nuisance,  as  against  the 
public,  cannot  be  gained  by  prescription.^''   In  other  words,  no  length 


Commonwealth  v.  Hopkins,  2  Dana 
(Ky.)  418;  but  see,  20  L.  R.  A.  610- 
612,  note,  for  review  of  conflicting 
authorities. 

"3  Greenleaf  Ev.,  §  187. 

i=Rex  V.  Ward,  4  Ad.  &  El.  384, 
31  E.  C.  L.  180;  Reg.  v.  Train,  2  B. 
&  S.  640,  110  E.  C.  L.  640;  State  v. 
Raster,  35  Iowa  221;  Seacord  v. 
People,  121  111.  623,  13  N.  E.  194; 
Baltimore  &c.  Tpk.  Road  v.  State, 
63  Md.  573. 

"  Rex  V.  Neil,  2  Car.  &  P.  485,  12 
E.  C.  L.  690;  Dennis  v.  State,  91  Ind. 
291;  Commonwealth  v.  Perry,  139 
Mass.  198,  29  N.  E.  656;  see  also, 
Euler  V.  Sullivan,  75  Md.  616,  23  Atl. 
845,  32  Am.  St.  420;  People  v.  Mal- 
lory,  4  Thomp.  &  C.  (N.  Y.)  567; 
Hurlbut  V.  McKone,  55  Conn.  31,  3 
Am.  St.  17;  Stephens  v.  Gardner 
Creamery  Co.,  9  Kans.  App.  883.  57 
Pac.  1058. 

"Reg.  v.  Stephens,  L.  R.,  1  Q.  B. 
702;  People  v.  Burtleson,  14  Utah 
258,  47  Pac.  87;  Seacord  v.  People, 
121  111.  623,  13  N.  E.  194.  Compare. 
State  V.  Linkhaw,  69  N.  Car.  214,  12 
Am.  R.  645.    So  the  fact  that  a  land- 


lord made  his  tenant  agree  not  to 
maintain  a  nuisance,  or  to  be  liable 
therefor,  has  been  held  no  defense. 
Peacock  Distillery  Co.  v.  Common- 
wealth, 25  Ky.  L.  R.  1778,  78  S.  W. 
893. 

^=  State  V.  Louisville  &c.  R.  Co., 
86  Ind.  114;  State  v.  Barnes,  20  R.  I. 
525,  40  Atl.  374;  People  v.  Law,  34 
Barb.  (N.  Y.)  494;  Commonwealth 
V.  Reed,  34  Pa.  St.  275;  Stoughton 
V.  State,  5  Wis.  291;  Commonwealth 
V.  Boston,  97  Mass.  555;  Rex  v. 
Pease,  4  B.  &  Ad.  30,  24  E.  C.  L.  24; 
Danville  &c.  R.  Co.  v.  Common- 
wealth, 73  Pa.  St.  29;  see  also.  Com- 
monwealth V.  Packard,  185  Mass.  64, 
69  N.  E.  1067. 

^"Rex  V.  Cros.B,  3  Campb.  224; 
State  V.  Phipps,  4  Ind.  515;  Ash- 
brook  V.  Commonwealth,  1  Bush 
(Ky.)  139,  89  Am.  Dec.  616;  Com- 
monwealth V.  Upton,  6  Gray  (Mass.) 
473;  State  v.  Holman,  104  N.  Car. 
861,  10  S.  E.  758;  Commonwealth  v. 
McDonald,  16  S.  &  R.  (Pa.)  390; 
State  V.  Louisville  &c.  R.  Co.,  86  Ind. 
114;  30  Am.  St.  557.  note. 


375  DISORDERLY    HOUSES.  [§    30G5. 

of  time  will  justify  a  public  nuisance.^'  The  extent  to  which  the 
legislature  or  a  municipality  may  go  in  declaring  a  thing  to  be  a 
nuisance  or  in  authorizing  what  would  otherwise  be  a  nuisance  has 
been  sufficiently  considered  in  another  volume.^* 

§  3065.  Disorderly  houses. — A  disorderly  house  was  a  public  nui- 
sance at  common  law,  and  even  in  states  in  which  the  common  law 
as  to  crimes  has  not  been  adopted  there  are  generally  statutes  to 
much  the  same  effect.  The  chief  question  that  may  be  considered  as 
at  all  peculiar  or  deserving  of  special  treatment  in  this  connection 
is  that  relating  to  evidence  of  character  or  reputation  and  to  evi- 
dence of  specific  acts,  although  it  may  be  well  to  state  in  passing  that 
the  evidence  must  sufficiently  connect  the  defendant  with  the  keep- 
ing of  the  house  as  alleged/**  and  that  common  reputation  or  rumor 
is  not  sufficient  of  itself,  even  if  competent,  to  prove  that  he  is  the 
keeper  of  the  house.^^  But  it  may  be  shown  by  circumstantial  evi- 
dence.-^ In  many  jurisdictions  it  is  held  that  on  a  prosecution  for 
keeping  a  disorderly  house,  or  permitting  it  to  be  so  used  as  to  make 
it  disorderly,  evidence  of  the  general  reputation  of  the  house  is  ad- 
missible as  tending  to  prove  that  it  was  disorderly.-^    But,  perhaps 

"  People  v.  Cunningham,  1  Denio  ^  Howard  v.  People,  27  Colo.  396, 

(N.    Y.)    524,    536;    People   v.    Gold  61  Pac.  595;  Territory  v.  Chartrand, 

Run    &c.    Co.,    66    Cal.    155,    4    Pac.  1  Dak.  379,  46  N.  W.  583;  Territory 

1150;  Commonwealth  v.  Alburger,  1  v.  Stone,  2  Dak.  155,  4  N.  W.  697; 

Whart.    (Pa.)    469;    1  L.  R.  A.  296,  King  v.   State,  17  Fla.  183;    Hogan 

note.  V.  State,  76  Ga.  82;    People  v.   Bu- 

"Vol.  Ill,  chap.  116,  §  2527.  chanan,  1  Idaho  681,  688;  Territory 

'"Humphries   v.    State,    (Tex.    Cr.  v.  Bowen,  2  Idaho  607,  23  Pac.  82; 

App.)    68    S.   W.   681;    Hamilton   v.  Betts  v.  State,  93  ind.  375;  Whitlock 

State.  (Tex.  Cr.  App.)   60  S.  W.  39;  v.  State,  4  Ind.  App.  432,  30  N.  E. 

People  v.  Wright,  90  Mich.  362,  51  934;    State    v.    Mack,    41    La.    Ann. 

N.  W.  517;  Bindernagle  v.  State,  61  1079,  6   So.  808;    State  v.  West,  46 

N.  J.  L.  259,  38  Atl.  973,  39  Atl.  360.  La.  Ann.  1009,  15  So.  418;  O'Brien  v. 

=°Loraine  v.   State,  22   Tex.  App.  People,  28  Mich.  213;  People  v.  Gas- 

640,  3  S.  W.  340;  People  v.  Saunders,  tro,    75   Mich.   127,   42    N.   W.    937; 

29  Mich.  269.  State  v.  Smith,  29.  Minn.  193,  12  N. 

=' State   v.    Worth,    R.    M.    Charlt.  W.  524;  State  v.  Bresland,  59  Minn. 

(Ga.)  5;  State  v.  Hand,  7  Iowa  411,  281,    61   N.   W.    450;    State   v.    Hen- 

71  Am.  Dec.  '453;   State  v.  Wells,  46  dricks,  15  Mont.  194,  39  Pac.  93,  48 

Iowa  662;  United  States  v.  Miller,  4  Am.  St.  666;  Drake  v.  State,  14  Neb. 

Cranch  (U.  S.)   104;  evidence  of  an  535,  17  N.  W.  117;   Nelson  v.  Terri- 

inmate  is  held  not  to  be  that  of  an  tory,    5    Okla.     512,    49    Pac.     920; 

accomplice  in.  Stone  v.  State,  (Tex.  Sprague  v.  State,  (Tex.  Cr.  App.)  44 

Cr.  App.)   85  S.  W.  808.  S.  W.  837;   Forbes  v.  State,  35  Tex. 


3065.] 


NUISANCE. 


376 


the  weight  of  authority  is  that  such  evidence  is  incompetent,  unless 
it  is  made  competent  by  statute,  on  the  ground  that  the  disorderly 
character  of  the  house  must  be  shown  as  a  fact,  and  not  by  hearsay 
evidence  of  reputation.-^  The  disorderly  character  of  the  house  may,, 
however,  be  shown  by  evidence  that  crowds  of  disorderly  people  went 
in  and  out,-*  or  that  it  was  commonly  resorted  to  for  immoral  and 
illegal  purposes,  such  as  prostitution,-^  or  the  like,^®  and  the  acts 
and  immoral  conversation  of  its  inmates  and  frequenters  in  and  about 
the  house,  or  in  some  instances,  even  elsewhere  or  in  the  absence 
of  the  accused,  may  be  shown  in  a  proper  case.^'^  So,  knowledge  on 
the  part  of  the  defendant,  when  necessary,  may  be  shown  by  circum- 
stantial evidence.^'^  The  weight  of  authority  is,  perhaps,  to  the  effect 
that  evidence  of  the  bad  character  or  reputation  of  the  defendant,  as 
keeper,  is  incompetent  in  the  first  instance,-^  but  the  question  de- 


Cr.  App.  24,  29  S.  W.  784;  Harkey  v. 
State,  33  Tex.  Cr.  App.  100,  25  S.  W. 
291,  47  Am.  St.  19.  Under  some  of 
the  statutes  the  reputation  of  the 
house  would  seem  to  be  directly  in 
issue,  and  evidence  thereof  would 
clearly  be  competent. 

^^Wooster  v.  State,  55  Ala.  217; 
Toney  v.  State,  60  Ala.  97;  Sparks 
v.  State,  59  Ala.  82;  Parker  v.  Peo- 
ple, 94  111.  App.  648;  State  v.  Lyon, 
39  Iowa  379;  State  v.  Lee,  80  Iowa 
75,  45  N.  W.  545,  20  Am.  St.  401; 
Smith  V.  Commonwealth,  6  B.  Mon. 
(Ky.)  21;  State  v.  Boardman,  64 
Me.  523;  Henson  v.  State,  62  Md. 
231,  50  Am.  R.  204;  Handy  v.  State, 
63  Miss.  207,  56  Am.  R.  803;  State  v. 
Bean,  21  Mo.  267;  Loehner  v.  Home 
Mut.  Ins.  Co.,  17  Mo.  247;  State  v. 
Foley,  45  N.  H.  466;  Heflin  v.  State, 
20  N.  J.  L.  J.  151;  People  v.  Mauch, 
24  How.  Pr.  (N.  Y.)  276;  Nelson  v. 
Territory,  5  Okla.  512,  49  Pac.  920; 
Commonwealth  v.  Stewart,  1  S.  &  R. 
(Pa.)  342,  and  authorities  cited  in 
§  3063  on  evidence  of  reputation. 

-*  Commonwealth  v.  Davenport,  2 
Allen  (Mass.)  299;  State  v.  Robert- 
son, 86  N.  Car.  628;  State  v.  Mc- 
Gahan,  48  W.  Va.  438,  37  S.  E.  573. 


^  Commonwealth  v.  Goodall,  165 
Mass.  588,  43  N.  E.  520;  Cahn  v. 
State,  110  Ala.  56,  20  So.  380;  State 
v.  Young,  96  Iowa  262.  65  N.  W.  160. 

-^  See,  People  v.  Russell,  110  Mich. 
46,  67  N.  W.  1099;  Reg.  v.  Rice,  L. 
R.,  1  C.  C.  21,  10  Cox  Cr.  Cas.  155; 
Weideman  v.  State,  4  Ind.  App.  397,. 
30  N.  E.  920. 

-'State  V.  Boardman,  64  Me.  523; 
State  V.  Garing,  75  Me.  591;  Binder- 
nagle  v.  State,  60  N.  J.  L.  307,  37 
Atl.  619;  State  v.  Toombs,  79  Iowa 
741,  45  N.  W.  300;  State  v.  Main,  31 
Conn.  572;  Herzinger  v.  State,  70 
Md.  278,  17  Atl.  81;  Beard  v.  State, 
71  Md.  275,  17  Atl.  1044,  17  Am.  St. 
536,  4  L.  R.  A.  675;  Commonwealth 
V.  Dam,  107  Mass.  210;  Common- 
wealth V.  Cardoze,  119  Mass.  210; 
but  see.  Commonwealth  v.  Harwood, 
4  Gray   (Mass.)   41,  64  Am.  Dec.  49. 

-^  Harwood  v.  People,  26  N.  Y.  190, 
84  Am.  Dec.  175;  State  v.  Schaffer, 
74  Iowa  704,  39  N.  W.  89;  State  v. 
Wells,  46  Iowa  662;  Graeter  v.  State, 
105  Ind.  271,  4  N.  E.  461;  Ward  v. 
People,  23  111.  App.  510. 

==*  State  V.  Hand,  7  Iowa  411,  71 
Am.  Dec.  453;  State  v.  Mack,  41  La. 
Ann.  1079,  6  So.  808;  United  States. 


377 


OBSTRUCTTXG   HIGHWAYS. 


[§    3066. 


pends  somewhat  on  local  statutes,  and  there  is  some  conflict  among^ 
the  antliorities.  It  is  said  that  Indiana,  Wisconsin  and  South  Caro- 
lina affirm  the  compotenc}^  of  such  e\ddence  and  the  other  states  deny 
it.^"  The  question  does  not  seem  to  have  been  decided,  however,  in. 
every  state,  and  there  are  some  jurisdictions,  in  addition  to  those 
mentioned,  in  which  such  evidence  is  admitted  in  a  proper  case.^^ 
But  a  petition  of  citizens  to  the  city  council,  in  which  the  defendant 
is  referred  to  as  a  lewd  woman,  is  incompetent.^^ 

§  3066.  Obstructing  highways. — Any  permanent  unauthorized  ob- 
struction to  a  public  street  or  highway  is  a  public  nuisance. ^^  It 
may  be  on,  beneath  or  above  the  surface  of  the  highway.^*  Indeed, 
an  obstruction  may  be  a  nuisance  although  not  permanent  in  its  na- 
ture,^ ^  and  an  unlawful  interference  with  a  highway  may  be  a  nui- 


V.  Nailor,  4  Cranch  (U.  S.)  372; 
Gamel  v.  State,  21  Tex.  App.  357, 
17  S.  W.  158;  State  v.  Hull,  18  R.  I. 
207,  26  Atl.  191,  20  L.  R.  A.  609.  Con- 
duct and  admissions  of  the  accused 
tending  to  show  the  bad  character 
of  the  house  and  that  he  or  she  was 
the  keeper,  may  be  proved  in  a 
proper  case.  Commonwealth  v. 
Dam,  107  Mass.  210;  Sullivan  v. 
State,  75  Wis.  650,  44  N.  W.  647; 
State  v.  McGregor,  41  N.  H.  407. 

'"'20  L.  R.  A.  610,  note.  Bad  char- 
acter of  the  lessor  indicted  for  leas- 
ing a  house  for  prostitution  cannot, 
however,  be  shown  in  the  first  in- 
stance, in  Indiana.  Graeter  v.  State, 
105  Ind.  271,  4  N.  E.  461.  But  the 
terms  of  the  lease  may  be  admis- 
sible. People  V.  Saunders,  29  Mich. 
269. 

"^Whittock  V.  State,  4  Ind.  App. 
432,  30  N.  E.  934;  State  v.  McDowell, 
Dudley  (S.  Car.)  346;  State  v.  Bru- 
nei], 29  Wis.  435;  Sparks  v.  State, 
59  Ala.  82;  Howard  v.  People,  27 
Colo.  396,  61  Pac.  595;  State  v.  Hen- 
dricks, 15  Mont.  194,  39  Pac.  93,  48 
Am.  St.  666,  the  keeper  being  an  in- 
mate. See  also,  Dailey  v.  State, 
(Tex.  Cr.  App.)    55  S.  W.  823;    see 


generally  as  to  proof  of  good  or  bad 
character  of  the  accused,  and  the 
time  to  which  ic  may  relate,  20  L.  R. 
A.  612,  613,  note. 

^'  Howard  v.  People,  27  Colo.  396, 
61  Pac.  595;  see  also,  Allen  v.  State, 
15  Tex.  App.  320. 

'^Elliott  Roads  &  Streets  (2nd 
ed.),  §  645;  State  v.  Berdetta,  73  Ind. 
185.  38  Am.  R.  117  (fruit  stand); 
Pettis  v.  Johnson,  56  Ind.  139;  Cos- 
tello  v.  State,  108  Ala.  45,  18  So.  820, 
35  L.  R.  A.  303;  Commonwealth  v. 
Blaisdell,  107  Mass.  234;  Smith  v. 
State,  23  N.  J.  L.  712;  People  v.  Ma- 
her,  141  N.  Y.  330,  36  N.  E.  396; 
State  v.  Leaver,  62  Wis.  387,  22  N. 
W.  576;  Rex  v.  Jones,  3  Campb.  230; 
Hibbard  v.  Chicago,  173  111.  91.  50 
N.  E.  256,  40  L.  R.  A.  621;  Smith  v. 
McDowell,  148  111.  51,  35  N.  E.  141, 
22  L.  R.  A.  393;  Young  v.  Rothrock, 
121  Iowa  588,  96  N.  W.  1105,  1107. 

^'^Bybee  v.  State,  94  Ind.  443;  see 
also,  Reimer's  Appeal,  100  Pa.  St. 
182,  45  Am.  R.  373;  Reg.  v.  Watts, 
1  Salk.  357;  Elliott  Roads  &  Streets 
(2nd  ed.),  §  647. 

==  Elliott  Roads  &  Streets  (2nd 
ed.),  §  648;  see  also  Commonwealth 
V.   Passmore,  1  S.  &  R.    (Pa.)   217; 


3066.] 


NUISANCE. 


378 


sance  although  not  strictly  an  obstruction.^^  The  existence  of  the 
highM'ay  must  be  shown^^  where  the  indictment  is  for  obstructing 
a  highway,  but,  if  this  is  properly  shown,  it  matters  not  how  the 
highway  was  established.^®  As  to  evidence  competent  and  sufficient 
to  show  the  existence  of  a  highway  reference  is  made  to  the  author- 
ities cited  below.^^  Each  day's  continuance,  as  a  rule,  is  an  indict- 
able offense,  and  a  prescriptive  right  to  maintain  it  cannot  be  ac- 
quired and  used  as  a  defense  to  a  public  prosecution.^"  Neither  is  it  a 
good  defense  for  the  defendant  to  show  that  he  had  opened  a  new 
way  for  the  public  over  his  own  land.*^    But  as  far  as  the  public 


Commonwealth  v.  Ruggles,  6  Allen 
(Mass.)  588;  People  v.  Horton,  64 
N.  Y.  610;  Rex  v.  Russell,  6  East 
427;  1  Hawkins  P.  C,  chap.  76,  §  49; 
People  v.  Cunningham,  1  Denio  (N. 
Y.)  524,  43  Am.  Dec.  709;  Rex  v. 
Cross,  3  Campb.  224;  State  v.  Edens, 
85  N.  Car.  522,  526;  1  Am.  St.  840- 
844,  note. 

««See,  Elliott  Roads  &  Streets 
(2nd  ed.),  §§  649,  650,  and  illustra- 
tive cases  there  cited. 

^^Whaley  v.  Wilson,  120  Ala.  502, 
24  So.  855;  State  v.  Trove,  1  Ind. 
App.  553,  27  N.  E.  878;  People  v. 
Jackson,  7  Mich.  432,  74  Am.  Dec. 
729;  State  v.  Cunningham,  61  Mo. 
App.  188;  State  v.  Lucas,  124  N.  Car. 
804,  32  S.  E.  553.  It  seems  that  it 
must  generally  be  shown  to  have 
been  actually  opened  to  some  extent 
at  least.  State  v.  Shinkle,  40  Iowa 
131;  State  v.  Babcock,  42  Wis.  138; 
State  V.  Kendall,  54  S.  Car.  192,  32 
S.  E.  300;  Southerland  v.  Jackson, 
30  Me.  462,  50  Am.  Dec.  633;  Bailey 
V.  Commonwealth,  78  Va.  19;  Ken- 
nedy V.  State,  (Tex.  Cr.  App.)  40  S. 
W.  590.  But  it  may  be  doubted  as 
to  whether  this  is  true  in  all  cases. 
See,  Commonwealth  v.  McNaugher. 
131  Pa.  St.  55,  18  Atl.  934;  Morgan 
V.  Monmouth  &c.  Road  Co.,  26  N.  J. 
L.  99;  Seeger  v.  Mueller,  28  111.  App. 
28;  see  also,  Elliott  Roads  &  Streets 
(2nd  ed.),  §§  662,  663. 


^'Howard  v.  State,  47  Ark.  431; 
State  V.  Teeters,  97  Iowa  458,  66  N. 
W.  754;  Zimmerman  v.  State,  4  Ind. 
App.  583,  31  N.  E.  55. 

^^  Commonwealth  v.  Abney,  4  T.  B. 
Mon.  (Ky.)  477;  Sage  v.  Barnes,  9 
Johns  (N.  Y.  365;  Arnold  v.  Flat- 
tery, 5  Ohio  271;  Plummer  v.  Ossi- 
pee,  59  N.  H.  55;  Hampson  v.  Tay- 
lor, 15  R.  I.  83;  Schafer  v.  Mayor, 
154  N.  Y.  466,  48  N.  E.  749;  and 
compare.  Stone  v.  Langworthy,  20  R. 
I.  602,  40  Atl.  832;  Hoffman  v.  Port 
Huron,  110  Mich.  616,  68  N.  W.  546; 
for  evidence  held  insutScient,  see, 
Snellhouse  v.  State,  110  Ind.  509,  li 
N.  E.  484. 

"  Commonwealth  v.  Upton,  6  Gray 
(Mass.)  473;  Taylor  v.  People,  6 
Park.  Cr.  Cas.  (N.  Y.)  347;  Rex  v. 
Cross,  3  Campb.  224,  227;  Queen  v. 
Brewster,  8  U.  C.  C.  P.  208;  Elliott 
Roads  &  Streets  (2nd  ed.),  §659,  and 
numerous  authorities  cited;  Pettit 
V.  Grand  Junction,  119  Iowa  352,  93 
N.  W.  381. 

"  Commonwealth  v.  Belding,  13 
Mete.  (Mass.)  10;  State  v.  Harden, 
11  S.  Car.  360;  Weathered  v.  Bray, 
7  Ind.  706.  Nor  that  he  owns  the 
fee.  State  v.  Walters,  69  Mo.  463; 
Montgomery  v.  Parker,  114  Ala.  118, 
21  So.  452;  Langsdale  v.  Bonton,  1^ 
Ind.  467.  Nor  that  there  are  other 
obstructions  or  that  it  is  the  custom 
of  the  neighborhood.  Commonwealth 


379.  OBSTRUCTING  OR  POLLUTING  WATERS.  [§    3067. 

prosecution  is  concerned,  if  the  act  is  one  that  has  been  authorized 
by  the  legislature,  this  will  constitute  a  defense  so  long  as  the  de- 
fendant keeps  within  the  law,  even  though  the  act  might  otherwise 
constitute  a  public  nuisance;"  yet  proof  of  a  license  to  maintain  a 
temporary  obstruction  is  no  defense  to  a  prosecution  for  maintain- 
ing a  permanent  obstruction  where  the  maintenance  of  a  permanent 
obstruction  is  shown.'** 

§  3067.  Obstructing  or  polluting  waters. — An  unlawful  obstruc- 
tion placed  in  a  navigable  stream  is  a  public  nuisance,  remediable 
by  indictment  against  the  party  or  parties  who  have  caused  the  ob- 
struction to  be  placed  in  the  stream."  Such  a  nuisance  may  also  be 
abated  in  a  proper  case,  and  "in  cases  where  the  remedy  by  indict- 
ment appears  to  be  inadequate,  that  is  to  say,  if  there  appears  to  be 
imminent  danger  of  irreparable  mischief  to  the  public  right  of  navi- 
gation before  the  tardiness  of  the  law  can  afford  relief,  equity  may 
interpose  and  abate  the  nuisance  upon  a  bill  for  an  injunction  filed 
by  the  attorney-general."-*^  It  has  been  held  that  if  the  defendant 
relies  upon  a  statutory  license  to  obstruct  the  stream,  he  must  prove 
compliance  with  every  requirement  thereof.*^    Here,  as  elsewhere,  the 

V.  Northern  Cent.  R.  Co.,  7  Pa.  Sup.  dall,  6  Ad.  &  El.  143;  Reg.  v.  Betts, 

Ct.  234;    Henline  v.   People,   81    111.  16  Q.  B.  1022,  71  E.  C.  L.  1022;  Reg. 

269;    Robinson   v.    State,    (Tex.    Cr.  v.   Randall,   Car.   &   M.   496;    Gould 

App.)    44  S.  W.   509;    see  also,  Mc-  Waters,  §  121. 

Cloughry  v.  Finney,  37  La.  Ann.  27,  ''57  Am.  St.  694,  note;  Yolo  Coun- 

31;    Judd  V.  Fargo,  107  Mass.  264;  ty  v.  Sacramento,  36  Cal.  193;  Rowe 

Bateman  v.  Burge,  6  Car.  &  P.  391,  v.     Granite    Bridge    Co.,    21     Pick. 

25  E.  C.  L.  490;   but  see,  Hamilton  (Mass.)    344;    Mayor  &c.  v.  Alexan- 

V.  State,  106  Ind.  361,  7  N.  E.  9.  dria  Canal  Co.,  12  Pet.   (U.  S.)   91; 

"Elliott  Roads  and  Streets,   (2nd  Attorney-General   v.    Cohoes    Co.,    6 

ed.),    §    651,    and    authorities   cited.  Paige  (N.  Y.)  133,  29  Am.  Dec.  755; 

Other  authorities  are  cited  in  Vol.  Attorney-General   v.    Jamaica    Pond 

III,  chap.  116,  on  Nuisance.  &c.    Co.,    133    Mass.    361;    Attorney- 

"  State  v.  Berdetta,  73  Ind.  185.  General  v.  New  Jersey  R.  Co.,  3  N. 

"People  V.    Vanderbilt,   26   N.   Y.  J.   Eq.   136;    Thompson  v.   Paterson 

287;    Commonwealth    v.    Church,    1  &c.   R.  Co.,  9   N.   J.  Eq.   526;    Allen 

Pa.  St.  105,  44  Am.  Dec.  112;  Dugan  v.  Board  of  Chocen  Freeholders,  13 

V.  Bridge  Co.,  27  Pa.  St.  303,  67  Am.  N.    J.    Eq.    68;    Attorney-General   v. 

Dec.  464;  Allegheny  Co.  v.  Zimmer-  Delaware  &c.  R.  Co.,  27  N.  J.  Eq.  1. 

man,  95  Pa.  St.  287,  40  Am.  R.  649;  ^"Commonwealth  v.  Church,  1  Pa. 

Sigler  V.  State,  7  Baxt.  (Tenn.)  493;  St.  105,  44  Am.  Dec.   112;    State  v. 

Rex    v.  Russell,  6  B.  &  C.  566;   Rex  Freeport,  43  Me  198;    State  v.  Par- 

V.  Ward,  4  Ad.   &  El.   384;    Rex  v.  rott,  71  N.  Car.  311;  see  also,  State 

Grosvenor,  2  Stark.  448;  Rex  v.  Tin-  v.  AVheeler,  44  N.  J.  L.  88. 


3068.] 


NUISANCE. 


380 


general  rule  is  that  the  court  will  not  balance  against  the  offense  the 
benefit  to  any  part  of  the  public  that  might  be  derived  from  the 
nuisance,  and  even  though  such  benefit  might  outweigh  the  public 
inconvenience  caused  by  the  obstruction  it  would  constitute  no  de- 
fense to  an  indictment  therefor.*^  A  wreck/^  or  a  mere  temporary 
obstruction*^  may  not,  however,  be  a  nuisance.  There  are  statutes 
in  many  of  the  states  prohibiting  the  pollution  of  streams  and  other 
waters,^"  and  even  at  common  law  the  pollution  of  certain  streams 
and  waters  so  as  to  destroy  the  fish  or  injuriously  affect  the  public 
health  or  the  like  was  a  public  nuisance.''  But  it  has  been  held  that, 
in  the  absence  of  any  statute  upon  the  subject,  it  must  be  shown  that 
the  stream  was  a  public  one  or  the  public  in  some  way  injuriously  af- 
fected.'- 

§  3068.  Public  indecency. — Lewd  and  lascivious  conduct,  exposure 
of  the  person,  obscenity,  and  the  like,  in  public,  were  indictable  of- 
fenses at  common  law,^^^  and  generally  constituted  public  nuisances, 
but  statutes  in  many  states  have  added  to  or  enlarged  the  scope  of 
the  common  law  upon  the  subject  of  public  indecency.'*  In  an  old 
case  it  is  said  that  the  term  public  indecency  has  no  fixed  legal  mean- 


*'  Rex  V.  Ward,  4  Ad.  &  El.  384,  31 
E.  C.  L.  180;  Rex.  v.  Grosvenor,  2 
Stark.  448;  Gold  v.  Carter,  9  Humph. 
(Tenn.)  369,  49  Am.  Dec.  712;  Peo- 
ple v.  St.  Louis,  10  111.  351,  48  Am. 
Dec.  339;  Respubllca  v.  Caldwell,  1 
Dall.  (U.  S.)  150;  1  Wood  Nuisance, 
§§  478,  479. 

*«See,  Rex  v.  Watts,  2  Esp.  675; 
Snark,  The,  L.  R.  (1900),  P.  Div. 
105,  82  L.  T.  N.  S.  42;  21  Am.  & 
Eng.  Ency.  of  Law,  443. 

■">  State  v.  Charleston  &c.  Co.,  68  S. 
Car.  540,  47  S.  E.  979;  People  v,  Mor- 
ton, 64  N.  Y.  610,  affg  5  Hun  (N. 
Y.)  516;  see  also,  Rex  v.  Tindall,  6 
Ad.  &  El.  143,  33  E.  C.  L.  96. 

=»  State  V.  Griffin,  69  N.  H.  1,  39 
Atl.  260,  41  L.  R.  A.  177,  and  note 
citing  authorities.  See  also,  12  L. 
R.  A.  577,  84  Am.  St.  916,  as  to  in- 
junction and  damages  for  pollution 
and  as  to  the  rights  and  liabilities 


of  municipalities  for  casting  sewage 
and  the  like  into  streams. 

"Garrett  Nuisance  (2nd  ed.)  Ill, 
112,  113;  Commonwealth  v.  Soulas, 
16  Phila.  (Pa.)  523,  525;  Rex  v.  Med- 
ley, 6  Car.  &  P.  292,  25  E.  C.  L.  439; 
State  v.  Taylor,  29  Ind.  517;  Board 
&c.  V.  Casey,  3  N.  Y.  S.  399;  State 
V.  Wahl,  35  Kans.  608,  11  Pac.  911. 

=>=  Messersmidt  v.  People,  46  Mich. 
437,  9  N.  W.  485. 

^^  See,  4  Blackstone  Comm.  64; 
Knowles  v.  State,  3  Day  (Conn.) 
103;  State  v.  Appling,  25  Mo.  315,  69 
Am.  Dec.  469;  Bell  v.  State,  1  Swan 
(Tenn.)  42;  Grisham  v.  State,  2 
Yerg.  (Tenn.)  589;  Rex  v.  Wilkes, 
4  Burr.  2527 ;  Dugdale  v.  Reg.,  Dears. 
C.  C.  64;  Rex  v.  Sedley,  17  How.  St. 
Tr.  155,  note. 

"See,  United  States  v.  Males,  51 
Fed.  41;  Commonwealth  v.  Wardell, 
128  Mass.  52;  Fuller  v.  People,  92 
111.  182. 


381 


PUBLIC    IXDECENCY. 


[§  3068. 


ing  and  is  usually  limited  by  the  courts  to  public  displays  of  the 
naked  person,  the  pul)lication,  sale,  or  exhibition  of  obscene  books 
and  prints,  or  the  exhibition  of  a  monster— acts  which  have  a  direct 
bearing  on  public  morals,  and  affect  the  body  of  society,  and  that 
even  under  a  statute  against  "notorious  lewdness  or  other  public 
indecency,"  a  prosecution  will  not  lie  for  using  obscene  language  or 
singing  obscene  songs.^"^  Under  most  of  the  statutes,  as  at  common 
law,  the  offensive  act  of  lewdness  must  be  public  and  is  generally  re- 
quired to  be  open  and  notorious,^"  but  a  private  sale  or  exhibition 
of  obscene  pictures  or  prints  has  been  held  a  sufficient  publication." 
And  it  seems  that  under  the  later  decisions,  tlie  place  in  which  the 
person  is  exposed  need  not  be  public  if  more  than  one  person  saw 
or  was  in  a  situation  to  see  it.=^^  Circumstantial  as  well  as  direct 
evidence  is  competent,^  ^  but  mere  hearsay  evidence  is  not.""  Knowl- 
edge or  intent  may  be  inferred  from  circumstances  and  is  some- 
times presumed  regardless  of  the  actual  motive."  But  the  question 
of  intent  and  various  other  questions  that  usually  arise  are  generally 
for  the  jury  to  determine.*'- 


"McJunkinG  v.  State.  10  Ind.  140. 

=°  Grouse  v.  State,  16  Ark.  566; 
People  V.  Gates,  46  Gal.  52;  Brooks 
V.  State,  2  Yerg.  (Tenn.)  482;  Com- 
monwealth  v.  Munson,  127  Mass. 
459;  Searls  v.  People,  13  111.  597; 
State  v.  Marvin,  12  Iowa  499. 

='Reg.  V.  Garlile,  1  Cox  Cr.  Gas. 
229;  Gommonwealth  v.  Sharpless,  2 
S.  &  R.   (Pa.)  91,  7  Am.  Dec.  632. 

='Reg.  V.  Wellard,  L.  R.  14  Q.  B. 
D.  63,  54  L.  J.  M.  G.  14,  15  Gox  Gr. 
Gas.  559;  Reg.  v.  Farrgll,  9  Gox  Gr. 
Gas.  446;  State  v.  Hazle,  20  Ark. 
156;  Gommonwealth  v.  Wardell,  128 
Mass.  52,  35  Am.  R.  357;  but  see, 
Gommonwealth  v.  Hardin,  2  Ky.  L. 
R.  59;  Reg.  v.  Thallman,  9  Gox  Gr. 
Gas.  388.  Much,  however,  depends 
upon  the  particular  statute.  As  to 
what  is  a  public  place,  see,  Reg.  v. 
Harris,  L.  R.,  1  C.  G.  282,  11  Gox 
Cr.  Gas.  659;  Van  Houten  v.  State, 
46  N.  J.  L.  16,  50  Am.  R.  397;  Reg. 
V.  Wellard,  L.  R.,  14  Q.  B.  63,  15  Gox 


Gr.  Gas.  559;  Reg.  v.  Holmes,  6  Gox 
Gr.  Gas.  216 ;  Moffit  v.  State,  43  Tex. 
346;  Lorimer  v.  State,  76  Ind.  495. 

^»  Gommonwealth  v.  Dill,  156  Mass. 
226,  30  N.  E.  1016;  Peak  v.  State, 
10  Humph.  (Tenn.)  99. 

"°  Buttram  v.  State,  4  Goldw. 
(Tenn.)   171. 

"  Reg.  V.  Hicklin,  11  Gox  Gr.  Gas. 
19,  29;  State  v.  Holedger,  15  Wash. 
443,  46  Pac.  652;  United  States  v. 
Harmon,  45  Fed.  414;  State  v.  Mc- 
Kee,  73  Gonn.  18,  46  Atl.  409;  People 
V.  Muller,  96  N.  Y.  408,  48  Am.  R. 
635;  Montross  v.  State,  72  Ga.  261, 
53  Am.  R.  840;  State  v.  Stice,  88 
Iowa  27,  55  N.  W.  17;  Gommon- 
wealth V.  Haynes,  2  Gray  (Mass.) 
72,  61  Am.  Dec.  437. 

<>=  Miller  v.  People,  5  Barb.  (N.  Y.) 
203;  Garter  v.  State,  107  Ala.  146, 
18  So.  232;  State  v.  Van  Wye,  136 
Mo.  227,  37  S.  W.  938.  58  Am.  St. 
627;  United  States  v.  Smith,  45  Fed. 
476. 


§    3069.]  NUISANCE.  382 

§  3069.  Storing  explosms. — It  has  been  held  that  the  mere  keep- 
ing of  a  large  quantity  of  gunpowder  or  other  explosives  on  one's 
premises,  or  even  near  a  public  place,  does  not  necessarily  constitute 
a  public  nuisance  per  se.^^  But  it  may  constitute  a  public  nuisance 
if  the  explosives  are  so  kept  and  in  such  a  place  and  under  such  cir- 
cumstances as  to  endanger  life.*'*  There  are  comparatively  few  de- 
cisions upon  the  subject,  however,  in  criminal  cases,  and  nothing 
peculiar  in  the  application  in  such  cases  of  rules  of  evidence.  The 
questions  generally  arise  in  civil  actions  for  damages  or  in  actions 
or  prosecutions  under  municipal  ordinances.®^ 

"Kinney    v.    Koopman,    116    Ala.  see   also,   Heeg  v.   Licht,   80   N.    Y. 

310,  22  So.  593,  67  Am.  St.  119,  and  579;    Rudder  v.  Koopman,  116  Ala. 

note;    Dumesnll    v.    Dupont,    18    B.  332,  22  So.  601;   Wilson  v.  Phoenix 

Mon.'  (Ky.)   800,  68  Am.  Dec.  750.  Powder  Co.,  40  W.  Va.  413,  21  S.  E. 

"Reg.   v.   Lister,  7   Cox  Cr.   Cas.  1035,  52  Am.  St.  890;  Wier's  Appeal, 

342;   People  v.  Sands,  1  Johns.   (N.  74  Pa.  St.  230. 

Y.)   78,  3  Am.  Dec.  296;   Bradley  v.  «=  See,   67   Am.    St.   134,   note;    86 

People,  56  Barb.    (N.  Y.)   72;   State  Am.  St.  521,  note,  and,  38  L.  R.  A. 

v.  Raggett,  8  Wash.  579,  36  Pac.  487;  306,  note. 


CHAPTER  CXLVIII. 


PERJURY. 


Sec.  Sec. 

3070.  Definition — Essential  elements.  3080. 

3071.  Burden  of  proof.  3081. 

3072.  Presumptions.  3082. 

3073.  Questions  of  law  or  fact.  3083. 

3074.  Oath  and  proceedings.  3084. 

3075.  Jurisdiction    of    tribunal — Au-  3085. 

thority  of  officer.  3086. 

3076.  Jurisdiction    of    tribunal — Re-  3087. 

cent  cases.  3088. 

3077.  Falsity.  3089. 

3078.  Motive  or  intent.  3090. 

3079.  Materiality.  3091. 


Materiality — Collateral  matter. 
Materiality — How  shown. 
Record  of  former  proceedings. 
Best  evidence. 
Stenographer's  notes. 
Parol  evidence. 
Res  gestae. 

Circumstantial  evidence. 
Admissions  and  confessions. 
Corroboration. 
Defenses. 
Variance. 


§3070.  Definition — Essential  elements.— Perjury,  except  where 
the  statute  otherwise  expressly  or  impliedly  defines  it,  may  be  defined 
as  a  corrupt,  wilful  and  false  oath  taken  in  a  judicial  proceeding,  be- 
fore some  court  or  officer  having  authority  to  administer  oaths,  con- 
cerning a  material  matter  involved  in  the  proceedings.^  To  maintain 
a  prosecution  for  perjury,  it  is  said,  it  must  appear  that  the  oath 
was  false,  the  intention  wilful,  the  proceedings  judicial,  the  party 
lawfully  sworn,  the  assertion  absolute,  and  the  falsehood  material 
to  the  matter  in  question.^  The  statutes  of  many  of  the  states  pro- 
vide that  one  may  be  prosecuted  for  perjury  who  takes  a  lawful  oath 
or  affirmation  in  any  matter  in  which,  by  law,  an  oath  or  affirmation 
may  be  required  and  who,  upon  such  oath  or  affirmation,  swears  or 
affirms  wilfully,  corruptly,  and  falsely  touching  a  matter  material 


'Hood  V.  State,  44  Ala.  81;  Miller 
v.  State,  15  Fla.  577.  At  common 
law  perjury  was  defined  as  the  "tak- 
ing of  a  wilful  false  oath  by  one 
who  being  lawfully  sworn  by  a  com- 
petent court  to  depose  the  truth  in 
any  judicial  proceeding,  swears  ab- 
solutely and  falsely,  in  a  matter  ma- 


terial to  the  point  in  issue,  whether 
he  believed  it  or  not."  Common- 
wealth V.  Powell,  2  Mete.  (Ky.)  10; 
see  also,  1  Hawkins  P.  C.  chap.  69, 
§  1;  2  Russell  Crimes  (5th  Am.  ed.) 
596;  4  Blackstone  Comm.  137. 

-  Commonwealth  v.   Kuntz,   4   Pa. 
L.   J.   163. 


383 


3070.] 


PERJURY,  384 


to  the  point  in  question.^  In  some  jurisdictions  false  swearing,  where 
it  would  not  be  perjury,  is  also  made  a  crime,  but  it  has  been  held 
that  where  it  is  made  a  separate  and  distinct  crime  by  statute,  the 
prosecution  must  be  based  upon  such  statute.*  Modern  statutes  in 
many  of  the  states  have,  as  above  stated,  enlarged  the  common-law 
offense  of  perjury,  and  it  is  impossible  to  give  an  exact  definition 
and  statement  of  the  essential  elements  under  every  statute,  yet  the 
different  statutes  bear,  in  most  respects,  a  close  resemblance.  The 
definition  and  statement  of  the  essential  elements  given  by  Mr. 
Hughes  will  be  found  to  be  applicable  in  most  jurisdictions,  and 
we  can  not  do  better  than  to  quote  from  his  work  as  follows  :^  "Per- 
jury consists  in  wilfully  and  falsely  swearing  to  a  fact  material  to 
the"^  point  in  issue  before  a  court  or  tribunal  having  legal  authority 
to  inquire  into  the  cause  or  matter  investigated.^  To  sustain  a  charge 
of  perjury  the  evidence  must  prove  the  following  essential  elements : 
(1)  The  authority  of  the  officer  to  administer  the  oath;  (2)  the 
occasion  of  administering  it;  (3)  the  taking  of  the  oath  by  the  ac- 
cused; (4)  the  substance  of  the  oath;  (5)  the  material  matter  sworn 
to;  (6)  the  introductory  averments;  (7)  the  falsity  of  the  matter 
sworn  to;  and  (S)  the  corrupt  intention  of  the  accused.'^  To  commit 
a  perjury  a  person  must  wilfully,  corruptly  and  falsely,  swear  or 
affirm.  The  false  assertion  made  by  the  witness  under  oath  must 
be  kno^-n  to  such  witness  to  be  false  and  must  be  intended  by  him 
or  her  to  mislead  the  court  or  jury."* 

'See,    for   instance.   Burns'    Ann.  note;    State  v.  Mace,  76  Me.   64.   5 

Ind.  Stat,  §  2093;  State  v.  Smith,  63  Am.  Cr.  R.  588;    Hood  v.   State,  44 

Vt.    201,    22    Atl.    604;     R.    L.    Vt,  Ala.   81,   86;    see  also,   85  Am.   Dec. 

§    4263;    Langford  v.    State,   9    Tex.  488,  note. 

App.   283;    see,  Act  Cong.  March  3,  '2  Roscoe  Cr.  Ev.,  836,  1045. 

1857,  §  5   (11  Stat.  250).  « Coyne  v.  People,   124   111.   24,   14 

estate   V.    Runyan,   130    Ind.    208,  N.  E.  668,  7  Am.  St.  324;  Johnson  v. 

29    N.    E.    779;    see   also,    Common-  People,   94   111.   505;    People   v.   Ger- 

wealth  V.  Maynard,  91  Ky.  131,  15  man,  110  Mich.  244,  68  N.  W.  150; 

S.   W.   52;    State  v.    Carpenter,   164  see.  State  v.  Higgins,  124  Mo.   640, 

Mo.    588,    65    S.   W.    255;    Steber   v.  28   S.  W.   178;    People  v.   Ross,  103 

State,  23  Tex.  App.  176,  4  S.  W.  880.  Cal.  425,  37  Pac.  379;  Bell  v.  Senneff, 

^Hughes  Cr.  Law  &  Proc,  §  1582.  83  111.  122;  People  v.  Willey,  2  Park. 

M  Blackstone  Comm.  137;  Pankey  Cr.    Cas.    (N.    Y.)     19;    Thomas    v. 

V.  People,  1  Scam.    (111.)    80;    State  State,   71   Ga.   252;    State  v.   Cruik- 

V.  Hunt,  137  Ind.  537,  37  N.  E.  409;  shank,  6  Blackf.  (Ind.)  62;  Miller  v. 

see,   State  v.   Houston,   103   N.   Car.  State,  15  Fla.   577;    Green  v.  State, 

383,  9  S.  E.  699,  8  Am.  Cr.  R.  631,  41  Ala.   419;   Williams  v.  Common- 


385 


BURDEN  OF  PROOF. 


[§    3071. 


§  3071.  Burden  of  proof. — The  burden  is  upon  the  prosecution  to 
establish  the  defendant's  guilt  beyond  a  reasonable  doubt.*  In  order 
to  do  this  it  is  necessary,  in  general,  to  prove  the  essential  elements 
of  the  crime  as  enumerated  in  the  last  preceding  section.  Thus,  it 
has  been  held  that  the  burden  rests  upon  the  state  in  a  prosecution 
for  perjury  to  show  that  the  oath  was  false,^**  the  intention  wilful,^^ 
the  proceedings  judicial,' ^  the  party  lawfully  sworn,^^  the  assertion 
absolute'*  and  the  falsehood  material  to  the  matter  in  question." 
The  burden  is  upon  the  state,  however,  to  prove  only  so  much  of  the 
testimony  of  the  witness  false  as  relates  to  the  particular  material 
fact  on  which  the  perjury  is  assigned,'^*  but  under  no  circumstances, 
it  is  said,  will  the  materiality  be  presumed.'^  It  has  been  held  that 
when  the  prosecution  has  shown  a  material  part  of  the  defendant's 
statement  under  oath  to  be  false,  a  prima  facie  case  is  established, 
and  the  burden  of  proof  rests  upon  the  defendant  to  show  that  his 
false  oath  was  occasioned  by  surprise,  inadvertency,  or  mistake,  and 
was  not  made  through  a  corrupt  motive.'^  But  where  the  defendant 
is  unable  to  read  or  write,  in  a  prosecution  for  perjury  for  signing 
a  false  affidavit,  the  state  must  first  show  that  the  defendant  had 


wealth,  91  Pa.  St.  493;  Davidson  v. 
State.  22  Tex.  App.  372,  3  S.  W.  662; 
1  Hawkins  P.  C.  429,  §  2. 

"Galloway  v.  State,  29  Ind.  442; 
People  v.  German,  110  Mich.  244,  68 
N.  W.  150;  State  v.  Fannon,  158  Mo. 
149,  59  S.  W.  75;  Rex  v.  De  Beau- 
voir,  7  Car.  &  P.  17,  32  E.  C.  L.  477. 

'"  Heflin  v.  State,  88  Ga.  151,  14  S. 
E.  112,  30  Am.  St.  147;  Common- 
wealth v.  Kuntz,  4  Pa.  L.  J.  163; 
State  V.  Chamberlin,  30  Vt.  559; 
Anderson  v.  State,  24  Tex.  App.  705, 
7  S.  W.  40;  Littlefield  v.  State,  24 
Tex.  App.  167,  5  S.  W.  650. 

"Mason  v.  State,  55  Ark.  529.  18 
S.  W.  827;  Foster  v.  State.  32  Tex. 
Cr.  App.  39,  22  S.  W.  21;  People  v. 
Macard,  109  Mich.  623,  67  N.  W.  968. 

^-King  v.  State,  32  Tex.  Cr.  App. 
463,  24  S.  W.  514;  Keator  v.  People, 
32  Mich.  484. 

"Sloan  v.  State,  71  Miss.  459,  14 
So.  262;  Dempsey  v.  People,  20  Hun 


(N.  Y.)  261;  State  v.  Mace,  86  N. 
Car.  668. 

"Mason  v.  State,  55  Ark.  529,  18 
S.  W.  827;  Commonwealth  v.  Kuntz, 
4  Pa.  L.  J.  163. 

"State  V.  Aikens,  32  Iowa  403; 
Nelson  v.  State,  32  Ark.  192;  Law- 
rence V.  State,  2  Tex.  App.  479;  Rich 
V.  United  States,  1  Okla.  354,  33  Pac. 
804. 

"*  United  States  v.  Erskine,  4 
Cranch  (U.  S.)  299,  25  Fed.  Cas.  No. 
15057;  Dodge  v.  State,  24  N.  J.  L. 
455;  Hutcherson  v.  State,  33  Tex.  Cr. 
App.  67,  24  S.  W.  908;  1  Bishop  Cr. 
Proc,  §  934. 

-"Nelson  v.  State.  32  Ark.  192; 
that  the  materiality  must  be  shown, 
see  also,  Commonwealth  v.  Pollard, 
12  Mete.  (Mass.)  225;  State  v.  Aik- 
ens, 32  Iowa  403;  Wood  v.  People, 
59  N.  Y.  117;  Garrett  v.  State,  37 
Tex.  Cr.  App.  198,  38  S.  W.  1017. 

"  State  V.  Chamberlin,  30  Vt.  559. 


Vol.  4  Elliott  Ev. 


§§  3072,  3073.]  perjury.  386 

an  understanding  of  the  statement  contained  in  the  aflfidavit.^^  Mak- 
ing a  mark  at  the  end  of  an  affidavit  after  it  is  read  to  affiant  where 
the  affidavit  contains  a  preface  and  conclusion,  both  stating  that  it 
is  sworn  to,  and  where  the  officer  signing  the  jurat  says  to  the  affiant, 
"if  you  swear  to  this  statement  put  your  mark  here,"  has  been  held 
to  be  an  oath  sufficient  on  which  to  assign  perjury.^® 

§  3072.  Presumptions. — Where  it  is  affirmatively  shown  in  a  prose- 
cution for  perjury  that  an  oath  was  administered  in  open  court  by 
an  acting  officer  of  the  class  having  authority  to  administer  such  oaths, 
the  presumption  is  that  it  was  rightfully  done,^°  but  in  the  absence 
of  any  evidence  by  the  prosecution,  there  is  no  presumption  that  an 
oath  was  administered  or  that  it  was  correctly  done.^^  There  is  no- 
legal  presumption  in  favor  of  the  prosecution  that  the  false  state- 
ment was  material,^^  but  on  the  other  hand,  this  must  be  affirmatively 
established  by  the  state.^^  And  it  may,  perhaps,  be  said  that  no  pre- 
sumption favors  the  prosecution  as  to  any  of  the  allegations  necessarily 
alleged,  for  they  must  be  affirmatively  proved  by  the  state.^*  That 
is,  the  state  must  at  least  produce  some  evidence  upon  the  subject. 

§  3073.  Questions  of  law  or  fact. — Questions  of  fact  are  for  the 
jury  in  perjury  cases  as  in  other  criminal  cases.  But  the  question 
as  to  whether  the  alleged  false  testimony  or  oath  upon  which  per- 
jury is  assigned  is  material  within  the  rule  in  regard  to  perjury  is 
generally  held  to  be  a  question  for  the  court.^^    So,  the  question  as 

''Hernandez  v.  State,  18  Tex.  App.  Vt.  559;  Sloan  v.  State,  71  Miss.  459, 

134,  51  Am.  R.  295.  14   So.   262. 

"  United  States  v.  Mallard,  40  Fed.         "  State  v.   Clough,   111   Iowa  714, 

151,  5  L.  R.  A.  816.  83  N.  W.  727;  State  v.  Cay  wood,  96 

2°  State  V.  Mace,  86  N.   Car.   668;  Iowa   367,   65   N.   W.    385;    State   v. 

State    V.     Hascall,     6     N.    H.     352;  Swafford,  98  Iowa  362,  67  N.  W.  284; 

Staight  V.   State,   39    Ohio    St.   496;  Gordon  v.  State,  48  N.  J.  L.  611,  7 

Reg.  V.  Roberts,  38  L.  T.  N.  S.  690.  Atl.  476;  United  States  v.  Singleton, 

=' Sloan  V.  State,  71  Miss.  459,  14  54  Fed.  488;   State  v.  Faulkner,  175 

So.  262.  Mo    546,  75  S.  W.  116;  State  v.  Wil- 

^' Nelson  v.  State,  32  Ark.  192.  liams,  30  Mo.  364;  Peters  v.  United 

=' Commonwealth  v.  Kuntz,   4  Pa.  States,   2    Okla.   138,   37   Pac.   1081; 

L.  J.  163;    State  v.  Chamberlin,   30  People  v.  Lem  You,  97  Cal.  224,  32 

Vt.   559;    State  v.   Aikens,   32    Iowa  Pac.  11;  Hanscom  v.  State,  93  Wis. 

403.  273,  67  N.  W.  419;  State  v.  Park,  57 

'*  Commonwealth  v.  Kuntz,  4  Pa.  Kans.  431,  46  Pac.  713;   Davidson  v. 

L.  J.  163;   State  V.  Chamberlin,  30  State,  22  Tex.  App.  372,  3  S.  W.  662. 


387  OATH  AND  PROCEEDINGS.  [§  3074. 

to  the  jurisdiction  of  the  court  in  the  proceeding  in  which  the  oath 
was  taken  has  been  held  to  be  a  question  for  the  court.-**  But,  in  a 
few  jurisdictions,  as  elsewhere  shown,  juries  are  made  the  judges  of 
both  law  and  fact,  and  in  such  a  jurisdiction  it  has  been  held  that  the 
defendant  in  a  prosecution  for  perjury  has  a  right  to  have  the  ques- 
tion of  the  materiality  of  the  alleged  false  testimony  submitted  to 
the  jury.^^ 

§  3074.  Oath  and  proceedings. — It  is  said  that  to  make  a  valid 
oath,  for  the  falsity  of  which  perjury  will  lie,  there  must  be  in  some 
form,  in  the  presence  of  an  oflBcer  authorized  to  administer  it,  an 
unequivocal  and  present  act  by  which  the  affiant  consciously  takes 
upon  himself  the  obligation  of  an  oath.^^  But  if  no  particular  form 
is  prescribed,  the  form  is  not  a  vital  matter,  where  the  oath  is  solemnly 
administered,^*  and,  if  a  form  is  prescribed,  a  substantial  compliance 
is  sufficient,^"  A  mere  voluntary  oath,  not  administered  in  the  course 
of  justice,  is  generally  insufficient,^^  but  it  is  not  now  usually  required, 
as  at  common  law,  to  be  in  a  judicial  proceeding.  It  has  been  held 
that  perjury  may  be  predicated  on  false  testimony,  although  the 
witness  was  incompetent,^^  ^^(j  ^i-,^^  ^^  affidavit  initiating  a  criminal 

But  it  is  said  that  it  may  become  a  professes  such  forms  to  be  binding 

mixed    question    of    law    and    fact;  upon    his    conscience.      Markey    v. 

Young  V.  People,  134  111.  37,  24  N.  E.  State,   (Fla.)   37  So.  53. 

1070;    McAvoy  v.  State,  39  Tex.  Cr.  ^^  State  v.  Dayton,  23  N.  J.  L.  49, 

App.  684,  47  S.  W.  1000.  53  Am.  Dec.  270;   State  v.  Gates,  17 

-•^  State  V.  Clough,  11  Iowa  714,  83  N.    H.    373;     Sharp    v.    Wilhite.    2 

N.  W.  727;  in.  State  v.  Hopper,  133  Humph.      (Tenn.)     434;     Common- 

Ind.  460,  32  N.  E.  878;  Masterson  v,  wealth  v.  Smith,  11  Allen    (Mass.) 

State,  144  Ind.  240,  43  N.  E.  138.  it  243;   State  v.  Owen,  72  N.  Car.  605; 

is  held  that  the  court  should  take  State  v.  Green,  24  Ark.  591. 

judicial  notice  of  the  authority  of  ='  See,   People  v.   Travis,   4   Park, 

the  officer  to  administer  oaths  upon  Cr.  Cas.  (N.  Y.)  213;  Silver  v.  State, 

proof  of  facts  showing  that  he  is  an  17    Ohio    365;    Lamden   v.    State,    5 

officer  upon  whom  the  statute  con-  Humph.    (Tenn.)   83;   Linn  v.  Com- 

fers  snoh  authority.  monwealth,  96  Pa.  St.  285;  Heintz  v. 

2'  State  V.  Spencer,  45  La.  Ann.  1,  Union  Quarter  Sessions,  45  N.  J.  L. 

12  So.  135.  523;    Rex  v.   Cohen,   1    Stark.   416; 

=»  O'Reilly  v.  People,  86  N.  Y.  154,  Reg.    v.    Bishop,    Car.    &    M.    302; 

40   Am.   R.    525;    Markey   v.    State,  United  States  v.  Babcock,  4  McLean 

(Fla.)  37  So.  53.  (U.   S.)    113. 

^''See,  State  v.  Keene,  26  Me.  33;  ===  State    v.    Moore,    111    La.    Ann. 

2  Wharton  Cr.  Law,  §  1251;  2  Bishop  1006,  36  So.  100;   see  also,  Horn  v. 

Cr.  Law,   §  1018.     Or  if  the  affiant  Foster,  19  Ark.  346,  354;   Montgom- 


§  3075.]  PERJURY.  388 

prosecution  is  a  sufficient  predicate  for  perjury .^^  So,  where  a  proper 
ease  for  impeaching  a  witness  by  showing  contradictory  statements 
was  presented,  it  was  held  that  such  witness  was  guilty  of  perjury 
if  he  swore  as  to  whether  he  did  or  did  not  make  such  contradictory 
statements.^*  Many  other  illustrative  cases  are  given  in  the  notes 
referred  to  below.^^  In  a  recent  Florida  case  it  is  held  that  the  officer 
alleged  to  have  administered  the  oath,  or  defendant  himself,  or  any 
witness  present  at  such  alleged  swearing  may  be  examined  fully  as 
to  the  facts  connected  therewith  that  it  may  be  determined  whether 
defendant  was  sworn  and  that  the  identification  and  production  of 
the  testimony  of  defendant  on  trial  for  perjury,  who  was  complainant 
in  a  divorce  suit,  with  proof  of  the  signature  of  the  defendant  and 
of  the  officer  taking  the  testimony,  is  prima  facie  sufficient  to  establish 
that  defendant  was  actually  sworn,  and  conclusive  unless  the  pre- 
sumption is  overcome  by  other  testimony.^^  So,  in  a  Kansas  case 
it  is  held  that  the  complaint  filed  and  the  warrant  served  in  the  action 
in  which  the  false  testimony  was  given  are  competent  and  admissible 
to  prove  the  pendency  of  the  proceedings  to  which  they  relate."  And 
in  a  Georgia  case,  where  it  appeared  that  accused  had  sworn  to  a  re- 
port of  several  pages,  one  of  such  pages  was  held  not  to  be  inadmissible 
because  the  accused  had  previously  sworn  to  it  before  another  attesting 
officer.^* 

§  3075.     Jurisdiction  of  tribunal — Authority  of  officer. — It  is  es- 
sential that  the  oath  should  be  taken  before  an  officer  having  authority 

ery  v.  State,  10  Ohio  220;   State  v.  case    that    where    the    affidavit    of 

Hawkins,  115  N.  Car.  712,  20  S.  B.  testimony   of   a   witness   was   actu- 

623;   but  compare.  Smith  v.  Bouch-  ally  used   by  him   in  the  cause  in 

ier,'2  Str.  993.  which  it  was  talten,  proof  of  this 

'^Simpson     v.     State,     (Tex.     Cr.  fact   will    obviate   the   necessity   of 

App.)   79  S.  W.  530.  proving  his  handwriting  on  trial  for 

^*  Brown   v.    State,    (Fla.)    36    So.  perjury,  but  will  not  dispense  with 

YQ5_  proof  that  he  was  sworn.     See  also, 

==85  Am.  Dec.  491.  note;   54  L.  R.  Rex  v.  James,  1   Show.   397,  Carth. 

A.  520.  note.    Cases  in  which  it  was  220;  State  v.  Madigan,  57  Minn.  425, 

held  that  the  tribunal,  proceeding  or  59  N.  W.  490;  Rex  v.  Morris,  2  Burr, 

oath  was  not  such  as  perjury  could  1189;  Rex  v.  Benson,  2  Campb.  508. 

be  predicated  upon  are  reviewed  as  =' State  v.  Horine,  (Kans.)  78  Pac. 

well  as  tho':e  in  which  it  was  held  411. 

that  perjury  would  lie.  '"  Thompson  v.  State,  120  Ga.  132, 

'^Markey  v.   State.    (Fla.)    37   So.  47  S.  E.  566. 
53.     It  was  also  held  in  the   same 


389  JURISDICTION — AUTHORITY  OF  OFFICER.  [§    30T5. 

to  administer  it,  or,  if  in  judicial  proceedings  in  court,  that  the  court 
should  have  jurisdiction.^**  But  there  is  some  conflict  among  the 
authorities  as  to  what  is  or  is  not  sufficient  to  show  or  constitute 
the  necessary  authority  or  jurisdiction,  and  mere  slight  irregularities, 
or  even  want  of  jurisdiction,  in  a  sense,  to  render  the  final  judg- 
ment rendered  by  tlie  court,  will  not  necessarily  prevent  one  who 
swears  falsely  from  being  found  guilty  of  perjury.  A  recent  writer 
after  reviewing  the  authorities  upon  the  subject,  makes  the  following 
statement:  "The  authorities  thus  reviewed  seem  to  establish  that 
want  of  jurisdiction  to  inquire  into  a  matter  at  all  is  fatal  to  a  charge 
of  perjury,  and  this  is  true,  at  least  at  common  law,  even  if  the  court 
had  general  jurisdiction  of  the  subject-matter  but  the  jurisdiction 
had  not  attached  in  the  particular  case.  In  this  connection,  however, 
it  is  important  to  bear  in  mind  that  defects  which  in  some  cases, 
and  under  some  circumstances,  are  deemed  to  deprive  the  court  of 
jurisdiction  of  the  particular  proceeding,  in  other  cases  and  under 
other  circumstances  are  regarded  as  mere  irregularities  that  they 
may  be  waived.  So,  also,  it  is  to  be  observed  that,  though  the 
court  may  not,  under  the  circumstances  as  developed  in  a  particular 
case,  have  had  jurisdiction  to  proceed  to  judgment,  yet  it  may 
have  had  jurisdiction  to  take  cognizance  of  the  case  in  the  first  in- 
stance. So,  also,  a  distinction  has  been  made  between  a  case  where 
there  was  no  jurisdiction  and  a  case  where  the  jurisdiction  might 
have  been,  but  was  not,  defeated  by  proof  of  extrinsic  circum- 
stances."*" In  a  recent  case  it  is  held  that  perjury  would  lie  although 
the  officer  or  magistrate  before  whom  the  proceedings  were  had  was 
only  an  officer  de  facto."  So,  it  is  generally  sufficient  prima  facie 
to  show  that  the  officer  or  magistrate  was  regularly  acting  as  such.*- 

5^85  Am.  Dec.  490,  note;   54  L.  R.  Atl.  406;  United  States  v.  Curtis,  107 

A.  513,  note.     In  botli  of  these  notes  U.  S.  671. 

numerous  authorities  are  reviewed,  *«  Morford    v.    Territory,    10    Okla. 

and  reference  will  here  be  made  to  741,  63  Pac.  958,  54  L.  R.  A.  513,  521, 

only  a  few  of  them.     Paine's  Case,  note. 

Yel.  Ill;   Rex  v.  Verelst,  3  Campb.  "  Morford   v.   Territory,   10   Okla. 

433;   Reg.  v.  Pearce,  9  Cox  Cr.  Cas.  741,  63   Pac.  958,  54  L.  R.  A.   513; 

268;  Reg.  v.  Hughes,  7  Cox  Cr.  Cas.  but    see,    Biggerstaff    v.     Common- 

286;  Muir  v.  State,  8  Blackf.  (Ind.)  wealth,   11   Bush    (Ky.)    169;    Lam- 

154;    State  v.  Phippen,  62   Iowa  54,  bert  v.  People,  76  N.  Y.  220. 

17  N.  W.  146;  State  v.  Gates,  107  N.  •*' State   v.   Hascall,   6   N.   H.   352; 

Car.    832,    12    S.    E.    319;    Butler   v.  Masterson  v.  State,  144  Ind.  240,  43 

State,  36  Tex.  Cr.  App.  483,  38  S.  W.  N.    E.    138;     Keator    v.    People,    32 

787;   State  v.  McCone,  59  Vt.  117,  7  Mich.  484;  Staight  v.  State,  39  Ohio 


§  3076.]  PERJURY.  390 

Thus,  evidence  that  the  oath  was  administered  in  open  court  by  one 
acting  as  deputy  clerk  has  been  held  sufficient  proof  of  official  author- 
ity to  administer  oaths.*^  So,  it  has  been  held  that  in  a  prosecution 
for  perjury  for  making  a  false  affidavit  the  production  of  the  affidavit, 
with  proof  that  the  defendant  signed  it,  the  officer  having  properly 
affixed  his  seal  and  Jurat,  is  sufficient  evidence  that  the  defendant 
actually  swore  to  the  affidavit,**  and  that  a  witness  may  testify 
that  he  had  authority  to  administer  oaths  and  having  such  authority 
that  he  administered  the  oath.*^ 

§  3076.  Jurisdiction  of  tribunal — ^Recent  cases. — The  subject 
treated  in  the  last  preceding  section  has  been  under  consideration 
in  several  recent  cases,  in  addition  to  those  cited,  and  it  may  be  well  to 
review  a  few  of  them.  In  a  Texas  case  it  was  said  that  while  perjury 
cannot  be  predicated  on  an  oath  administered  in  proceedings  wholly 
void,  yet  mere  irregularities  or  informalities  not  ousting  the  juris- 
diction of  the  court  constitute  no  defense  to  a  charge  of  perjury. 
And  it  has  been  held  that  where  parties  to  a  civil  action  expressly 
agreed  in  writing  to  waive  notice,  time,  and  issuance  of  commission 
to  take  a  deposition  of  the  plaintiff  therein  as  evidence  on  the  trial, 
and  agreed  that  the  answers  to  the  interrogatories  might  be 
taken  on  the  original  and  cross  interrogatories  before  any  officer 
authorized  by  law  to  take  the  same  in  the  county  where  plaintiff 
might  be  found,  a  notary  public  of  the  county  where  plaintiff  was 
found  was  authorized  to  take  his  deposition,  making  the  deposition 
legal,  and  plaintiff  guilty  of  perjury  on  giving  false  answers  to  such 
interrogatories.*''  So,  in  a  recent  case  in  Florida,  it  is  held  that 
although  a  tribunal  must  have  jurisdiction  before  perjury  can  be 
committed  by  making  a  false  oath  before  it,  yet  where  there  is  a  de- 
fect which  renders  the  proceeding  voidable  only,  and  such  proceeding 

St.   496;    Reg.  v.  Roberts,  38   L.   T.  59  N.  W.  490;  State  v.  Hascall,  6  N. 

N.    S.    690;    see    also,    Warwick    v.  H.  352;     but  see,  Morrell  v.  People, 

State,  25   Ohio  St.   21;    Stephens  v.  32  111.  499,  502;  State  v.  Theriot,  50 

State,  1  Swan  (Tenn.)  157;  State  v.  La.   Ann.   1187,   24   So.   179;    United 

Mace,  86  N.  Car.  668;  State  v.  Greer,  States  v.  Garcelon,  82  Fed.  611. 

48  Kans.  752,  30  Pac.  236.  '=  Woodson  v.  State,  24  Tex.  App. 

*-Keator  v.  People,  32  Mich.  484;  153,  6  S.  W.  184;    State  v.  Hascall, 

King  V.  State,  32  Tex.  Cr.  App.  463,  6  N.  H.  352;  Moore  v.  State,  52  Ala. 

24  S.  W.  514;  Masterson  v.  State,  144  424. 

Ind.  240,  43  N.  E.  138.  « Manning    v.     State,     (Tex.     Cr. 

"State  V.  Madigan,  57  Minn.  425,  App.)  81  S.  W.  957. 


391  FALSITY  OF  OATH,  [§  3077. 

is  amendable  or  the  defects  are  waived,  perjury  may  be  committed ; 
and  that  mere  irregularities  in  the  appointment  of  a  person  to  take 
testimony  cannot  be  questioned  on  the  trial  for  perjury  of  one  who 
testified  falsely  before  him.  Applying  these  principles  to  the  case 
before  it,  the  court  held  that  where,  on  motion  of  the  complainant 
in  a  proceeding  for  divorce,  the  court  appoints  a  certain  attorney 
to  take  testimony,  but  fails  to  designate  him  by  any  official  title,  the 
order  confers  authority  on  him  to  take  the  testimony  and  to  ad- 
minister oaths  to  complainant  and  other  witnesses,  and  that  where  a 
bill  for  divorce  contained  allegations  giving  the  court  jurisdiction 
and  warranting  the  relief  sought,  if  true,  the  fact  that,  on  the  trial 
•of  complainant  for  perjury  in  testifying  as  to  material  facts,  it  ap- 
peared that  neither  party  had  resided  in  the  state  for  the  statutory 
period,  would  not  prevent  a  conviction,*'^  And  in  another  recent 
case  it  is  held  that  one  may  be  convicted  of  false  swearing  although 
the  officer  who  administered  the  oath  knew  at  the  time  that  it  was 
false,  and  was  made  to  obtain  funds  to  which  the  affiant  was  not  en- 
titled, and  although  such  officer  administered  the  oath  for  the  pur- 
pose of  instituting  criminal  proceedings,*^ 

§  3077.  Falsity. — Proper  evidence  is,  of  course,  admissible  to  show 
ihe  falsity  of  the  statement  in  the  former  proceedings  as  this  is 
an  essential  ground  upon  which  the  proceeding  must  stand  or  fall.*^ 
Circumstantial  evidence  is  admissible  upon  this  question,^"  and  con- 
tradictory statements  and  facts  which  show  the  falsity  of  the  oath 
upon  which  perjury  is  assigned  are  usually  relevant  and  admissible.^^ 
Thus,  it  is  held  that  the  state  may  show  the  falsity  of  the  defendant's 
statements  regarding  other  and  correlative  facts  as  tending  to  prove 

"Markey  v.   State,    (Fla.)    37   So.  109  Mich.  623,  67  N.  W.  968;    State 

53,  V.  Smith,  119  N.  Car.  856,  25  S.  E. 

*«  Thompson  v.  State,  120  Ga.  132,  871. 
47  S.  E.  566.  '"  State  v.  Swafford,  98  Iowa  362, 

"Heflin   v.    State,   88   Ga.   151,   14  67  N.  W.  284;  State  v.  Faulk,  30  La. 

S   E.  112,  30  Am.  St.  147;  Adams  v.  Ann.  831;    Eighmy  v.  People,  79  N. 

State,    93    Ga.    166,    18    S.    E.    553;  Y.  546;   but  see,  Hemphill  v.  State, 

Littlefield  v.  State,  24  Tex.  App.  167,  71  Miss.  877,  16  So.  261. 
5  S.  W.  650.    "Any  fact,"  says  Mr.         "Brown   v.   State,   57   Miss.    424; 

Underbill,  "is  relevant  which  tends  State   v.   Faulk,   30   La,   Ann.    831; 

to  prove  or  disprove  either  its  truth  State  v.  Jones,  91  N.  Car.  629;  Cord- 

or     falsity."      Underhill     Cr.     Ev.,  way  v.  State,  25  Tex.  App.  405,  8  S. 

§  469;  see  also.  Walker  v.  State,  107  W.  670;  Mason  v.  State,  55  Ark.  529, 

Ala.  5,  18  So.  393;  People  v.  Macard,  18  S.  W.  827, 


§  3078.]  PERJURY.  392 

the  falsity  of  the  material  fact.^^  It  has  also  been  held  that  a  wit- 
ness for  the  state  in  a  case  of  perjury  may  testify  as  to  what  the  de- 
fendant said  in  the  former  proceeding  and  may  then  say  that  it  was 
false,  and  give  the  facts  which  conclusively  show  it  to  be  false.^^ 

§  3078.  Motive  or  intent. — Evidence  tending  to  show  the  motive 
or  intent  in  taking  the  alleged  false  oath  or  giving  the  alleged  false 
testimony  is  frequently  important  upon  the  question  as  to  whether 
it  was  wilfully  false  and  corrupt,  and  evidence  has  been  held  ad- 
missible to  show  animosity  and  malice  in  the  defendant  against  the 
prosecutor;^*  or  that  he  had  sinister  and  corrupt  motives  in  giving 
the  false  testimony.  Thus,  where  the  charge  of  perjury  was  based 
upon  a  complaint  made  by  the  defendant  of  threats  on  the  part  of 
the  prosecutor  to  do  him  some  great  bodily  harm,  requiring  sureties 
of  the  peace  against  him,  it  was  held  that  evidence  was  admissible, 
which  showed  that  the  real  object  of  the  defendant,  in  making  that 
complaint,  was  to  coerce  the  prosecutor  to  pay  a  disputed  demand.^ ^ 
And  so  it  has  been  held  that  although  the  false  testimony  given  in  a 
cause  was  afterwards  retracted  on  cross-examination,  or  a  subsequent 
stage  of  the  trial,  yet  the  indictment  will  be  sustained  by  proof  that 
the  false  testimony  was  wilfully  and  corruptly  given,  notwithstanding 
the  subsequent  retraction.^"  "But  it  must  be  clearly  shown,"  says 
Professor  Greenleaf,^^  "to  have  been  wilfully  and  corruptly  given, 
without  any  intention,  at  the  time,  to  retract  it;  for  it  is  settled, 
that  a  general  answer  may  be  subsequently  explained  so  as  to  avoid 
the  imputation  of  perjury.  Thus,  where  perjury  was  assigned  upon 
an  answer  in  chancery,  in  which  the  defendant  stated  that  she  had 
received  no  money ;  and  it  was  proved,  that,  upon  exceptions  being 
taken  to  this  answer,  she  had  put  in  a  second  answer,  explaining  the 
generality  of  the  first,  and  stating  that  she  had  received  no  money 
before  such  a  day, — it  was  held,  upon  a  trial  at  bar,  that  nothing  in 
the  first  answer  could  be  assigned  as  perjury  which  was  explained  in 
the  second."^^    It  has  also  been  held  that  the  evil  intent  of  the  de- 

^^  Anderson  v.  State,  24  Tex.  App.  also,    Reg.    v.    Phillpotts,    3    Car.    & 

70.5,  7  S.  W.  40.  Kir.  135,  5  Cox  Cr.  Cas.  363. 

^'  Adams  v.  State,  93  Ga.  166,  18  S.  "  3  Greenleaf  Ev.,  §  199. 

E.  553;    Heflin  v.  State,  88  Ga.  151,  °^  Rex  v.  Carr,  1  Sid.  418,  2  Keb. 

14  S.  E.  112,  30  Am.  St.  147.  336;  2  Russell  Crimes  666  (5th  Eng. 

"Rex  V.  Munton,  3  Car.  &  P.  498.  ed..  Vol.  Ill,  97).   The  same  general 

^^  State  V.  Hascall,  6  N.  H.  352.  principle    is   recognized    in,    Rex    v. 

^"Martin  v.  Miller,  4   Mo.  47;    see  Jones,  1  Peake  N.  P.  38;  Rex  v.  Dow- 


393  MOTIVE    OR    INTENT — MATERIALITY.  [§    30';:). 

fendant  may  be  shown  by  evidence  of  other  perjury  than  that  alleged 
in  the  indictment,  relating  to  the  same  oath  and  subject-matter,  and 
this  may  be  properly  considered  by  the  jury  in  determining  the 
question  of  corrupt  intent  in  swearing  to  the  false  matter  upon 
which  the  defendant  is  charged. °®  Evidence  has  also  been  held  ad- 
missible which  tends  to  show  that  the  accused  endeavored  to  induce 
a  third  person  to  give  false  testimony  in  the  case  in  which  he  gave 
the  alleged  false  testimony,*'"  or  that  the  defendant  charged  with  per- 
jury endeavored  to  prevent  and  induce  witnesses  from  testifying 
against  the  defendant  in  the  case  in  which  the  false  testimony  was 
given,'^  Deliberation  and  wilfulness,  it  is  said,  are  essential  ele- 
ments of  the  crime  of  perjury  and  evidence  which  tends  to  prove 
such  is  admissible  and  goes  to  the  very  substance  of  the  offense."* 
It  has  also  been  held  that  a  justice  of  the  peace  who  conducted  the 
preliminary  examination  of  the  case  in  which  the  perjury  is  alleged 
to  have  taken  place,  may  testify  as  to  the  insolent  conduct  and  lan- 
guage of  the  defendant  while  testifying  before  him.®^  And  where 
the  defendant  attempts  to  show  that  his  affidavit  or  testimony  was 
made  by  mistake,  inadvertence  or  under  agitation,  the  prosecution 
may  usually  show  that  the  defendant  made  such  false  statement 
with  premeditation.*'* 

§  3079.  Materiality. — In  an  action  for  perjury  there  must  be 
proof  that  the  false  testimony  was  material  to  the  issue.  The  fact 
that  it  was  false  alone  is  not  enough  to  convict,  and  false  testimony 
will  not  be  presumed  to  be  material.*'^  A  witness  will  not  be  per- 
mitted to  give  it  as  his  opinion  that  the  evidence  was  material,  but  this 
is  left  for  the  tribunal.'"'     The  question  of  materiality  is  usually  to 

lin,  1  Peake  N.  P.  170;  Rex  v.  Row-  '^Lawrence  v.  State,  2  Tex.  App. 

ley,  Ry.  &  M.  299.  479;   Rich  v.  United  States,  1  Okla. 

=»  State  V.  Raymond,  20  Iowa  582.  354,  33  Pac.  804;  Wood  v.  People,  59 

«°Heflin  v.  State,  88  Ga.  151,  14  S.  N.  Y.  117;   Nelson  v.  State,  32  Ark. 

E.  112,  30  Am.  St.  147.  192.    The  mere  fact  that  the  testi- 

"  People  V.  Macard,  109  Mich.  623,  mony  was  admitted   has  been  held 

67  N.  W.  968.  insufficient  to  show  that  it  was  ma- 

"^  Mason  v.  State,  55  Ark.  529,  18  terial.   Commonwealth  v.  Pollard,  12 

S.  W.  827.  Mete.   (Mass.)   225;  see  also.  Brown 

"^Foster  v.  State,  32  Tex.  Cr.  App.  v.  State,  (Fla.)  36  So.  705. 

39,  22  S.  W.  21.  '"  Washington    v.    State,    23    Tex. 

"Davidson  v.  State,  22  Tex.  App.  App.    336,   5    S.    W.    119;    Foster   v. 

372,  3  S.  W.  662;  but  see,  Mason  v.  State,  32  Tex.  Cr.  App.  39,  22  S.  W. 

State,  55  Ark.  529,  18  S.  W.  827.  21;  Silver  v.  State,  17  Ohio  365. 


5079.] 


PERJURY. 


394 


be  determined  as  of  the  time  when  the  alleged  false  testimony  was 
given.®'^  Upon  this  question  Professor  Greenleaf  says  :®^  "As  to  the 
materiality  of  the  matter  to  which  the  prisoner  testified,  it  must 
appear  either  to  have  been  directly  pertinent  to  the  issue  or  point 
in  question,  or  tending  to  increase  or  diminish  the  damages,  or  to 
induce  the  jury  or  judge  to  give  readier  credit  to  the  substantial 
part  of  the  evidence."^  But  the  degree  of  materiality  is  of  no  im- 
portance; for,  if  it  tends  to  prove  the  matter  in  hand,  it  is  enough, 
though  it  be  circumstantial.'^"  Thus,  falsehood,  in  the  statement  of 
collateral  matters,  not  of  substance,  such  as  the  day  in  an  action 
of  trespass,  or  the  kind  of  staff  with  which  an  assault  was  made,  or 
the  color  of  his  clothes,  or  the  like,  may  or  may  not  be  criminal,  ac- 
cording as  they  may  tend  to  give  weight  and  force  to  other  and 
material  circumstances,  or  to  give  additional  credit  to  the  testimony 
of  the  witness  or  of  some  other  witness  in  the  cause.''^    And  there- 


•"Rex  v.  Hailey,  1  Car.  &  P.  258; 
Bullock  V.  Koon,  4  Wend.  (N.  Y.) 
531;  People  v.  Lem  You,  97  Cal.  224, 
32  Pac.  11;  see  also,  People  v. 
Hitchcock,  104  Cal.  482,  38  Pac.  198; 
State  v.  Mooney,  65  Mo.  494;  Reg.  v. 
Phillpotts,  3  Car.  &  Kir.  135,  5  Cox 
Cr.  Cas.  363;  Rex  v.  Crossley,  7 
Term  R.  311,  315;  State  v.  Whitte- 
more,  50  N.  H.  245,  9  Am.  R.  196. 
Evidence  that,  in  a  corporation 
court  having  jurisdiction  only  of 
offenses  committed  in  the  city,  on  a 
trial  for  playing  cards  in  the  city, 
the  defendant  falsely  swore  that  he 
had  not  seen  or  played  in  a  game 
outside  of  the  city  has  been  in- 
sufficient to  sustain  a  conviction  of 
perjury,  without  evidence  to  show 
the  materiality  of  the  facts  of  which 
he  testified.  Pyles  v.  State,  (Tex. 
Cr.  App.)  83  S.  W.  811.  So,  in  a 
similar  case  it  was  held  by  the  same 
court  that  evidence  that  the  game  of 
cards  about  which  the  defendant 
swore  falsely  was  played  outside  of 
the  city  limits,  would  not  support  a 
conviction,  in  the  absence  of  further 
proof  showing  that  such  false  testi- 


mony was  material  to  the  issue. 
Liggett  V.  State,  (Tex.  Cr.  App.)  83 
S.  W.  807. 

"'  3  Greenleaf  Ev.,  §  195. 

""2  Russell  Crimes  600,  (5th  Eng. 
ed..  Vol.  Ill,  10);  1  Hawkins  P.  C, 
chap.  69,  §  8;  Rex  v.  Aylett,  1  Term 
R.  63,  69;  Commonwealth  v.  Parker, 
2  Cush.  (Mass.)  212;  Common- 
wealth V.  Knight,  12  Mass.  274;  Rex 
V.  Prendergast,  Jebb  C.  C.  64;  see 
also.  State  v.  Norris,  9  N.  H.  96; 
Wood  V.  People,  59  N.  Y.  117;  Com- 
monwealth V.  Grant,  116  Mass.  17; 
State  V.  Park,  57  Kans.  431,  46  Pac. 
713;  Crump  v.  Commonwealth,  75 
Va.  922;  Hanscom  v.  State,  93  Wis. 
273,  67  N.  W.  419;  State  v.  Hunt,  137 
Ind.  537,  37  N.  E.  409;  85  Am.  Dec. 
492,  493,  note. 

"Rex  V.  Griepe,  1  Ld.  Raym.  256; 
Reg.  V.  Rhodes,  2  Ld.  Raym.  886, 
890;  State  v.  Hattaway,  2  N.  &  Mc. 
(S.  Car.)  118;  Commonwealth  v. 
Pollard,  12  Mete.  (Mass.)  225;  see, 
Reg.  V.  Worley,  3  Cox  Cr.  Cas.  535; 
Reg.  V.  Owen,  6  Cox  Cr.  Cas.  105. 

"1  Hawkin  P.  C,  chap.  69,  §  8; 
2  Russell  Crimes,  600  (5th  Eng.  ed.. 


395  COLLATERAL    MATTER.  [§    3083. 

fore  every  question  upon  the  cross-examination  of  a  witness  is  said 
to  be  material.'^^  In  the  answer  to  a  bill  in  equity,  matters  not  re- 
sponsive to  the  bill  may  be  material."^^  But,  while  questions  on 
cross-examination  that  go  to  the  credit  of  the  witness  are  generally 
considered  material,  the  statement  of  Professor  Greenleaf  seems  to 
be  a  little  too  broad,  for  if  the  evidence  of  the  witness  in  chief  is 
not  material  and  the  question  on  cross-examination  does  not  go  to  the 
credit  of  the  witness,  it  would  not,  ordinarily,  be  material.'^* 

§  3080.  Collateral  matter. — Although  the  false  oath  or  testimony 
must  be  material,  it  is  not  necessary  that  it  should  be  material  to  the 
main  issue  or  question.'^  ^  It  may  be  sufficient  if  it  is  material  to  some 
collateral  matter  involved.  Thus,  it  is  said,  that  "a  party  not  only 
commits  perjury  by  swearing  falsely  and  corruptly  as  to  the  fact 
which  is  immediately  in  issue,  but  also  by  doing  so  as  to  material 
circumstances  which  have  a  legitimate  tendency  to  prove  or  disprove 
such  fact.""''  It  has  been  held,  for  instance,  that  perjury  may  be  as- 
signed upon  false  testimony  offered  to  procure  the  admission  in  evi- 
dence of  a  material  document,'^'  upon  a  false  affidavit  for  a  con- 
tinuance,'^^ upon  false  testimony  tending  to  increase  or  diminish  the 
damages, '^^  or  upon  false  testimony  affecting  the  credibility  of  a 
witness.^*'    And  it  makes  no  difference  that  the  jury  may  not  have 

Vol.  Ill,  10);    Studdard  v.  Linville,  Mete.    (Mass.)    225;    State  v.  Laval- 

3    Hawks    (N.    Car.)    474;    State   v.  ley,  9  Mo.  834;    Wood  v.  People,  59 

Norris,  9  N.  H.  96  N.  Y.  117;  State  v.  Brown,  79  N.  Car. 

"State    V.    Strat,    1    Murph.     (N.  642,  644;    Dilcher  v.  State,  39  Ohio 

Car.)   124;   Reg.  v.  Overton,  2  Moo.  St.  130;   2  Bishop  Cr.  Law,  §  1032; 

C.   C.   263,   Car.   &   M.    655;    Reg.   v.  2  Wharton  Cr.  Law,  §  1277. 

Lavey,  3  Car.  &  Kir.   26;    see  also,  ""Commonwealth     v.     Grant,     116 

State  v.  Hunt,  137  Ind.  537,  37  N.  E.  Mass.    17;    see   also,    Rex   v.    Griep. 

409;  Hanscom  v.  State,  93  Wis.  273,  Holt  535,  12  Mod.  139,  1  Ld.  Raym. 

67  N.  W.  419.  256. 

"Rex  V.  Melling,  5  Mod.  348;   see  "Reg.  v.  Phillpotts,  5  Cox  Cr.  Cas. 

also,  Reg.  v.  Yates,  Car.  &  M.  132;  363,  3  Car.  &  Kir.  135. 

but  compare.  Silver  v.  State,  17  Ohio  '*  State   v.    Winstandley,    151    Ind. 

365.  316,  51  N.  E.  92;   see  also,  Sanders 

"  Stanley  v.  United  States,  1  Okla.  v.  People,  124  111.  218,  222,  16  N.  E. 

336,  33  Pac.  1025;  Leak  v.  State,  61  81;    State  v.  Bunker,  38  Kans.  737, 

Ark.   599,   33   S.  W.  1067;    see  also,  17  Pac.  651. 

State  V.  Brown,  68  N.  H.  200.  '"State    v.    Norris,    9    N.    H.    96; 

'=*  Jacobs    V.    State,    61    Ala.    448;  Lawrence  v.  State,  2  Tex.  App.  479; 

Robinson  v.  State,  18  Fla.  898;  State  Stephens  v.  State,  1  Swan    (Tenn.) 

V.   Wilson,    156    Ind.    343,    59   N.    E.  157. 

932;    Commonwealth  v.   Pollard,   12  ^"Reg.  v.  Lavey,  3  Car.  &  Kir.  26; 


§§  3081,  3082.]  PERJURY.  396 

believed  the  false  testimony,  or  that  the  result  would  have  been  the 
same  if  the  accused  had  not  given  false  testimony.^^ 

§  3081.  Materiality — How  shown. — The  record  of  the  former  pro- 
ceedings is  usually  admissible  and  generally  necessary  to  show  the 
materiality  of  the  alleged  false  testimony,  but  as  will  be  hereafter 
shown,  parol  evidence  is  admissible  in  some  instances  and  the  re- 
porter who  takes  down  the  evidence  may  read  from  his  notes  in  a 
proper  case.  "Where  the  proof  of  materiality  is  found  in  the  records 
of  the  court,  or  in  the  documents  necessary  to  show  the  nature  of 
the  proceedings  in  which  the  oath  was  taken,  this  fact,"  says  Professor 
Greenleaf,  "will  appear  in  the  course  of  proving  the  proceedings, 
as  has  already  been  shown.  But  where  the  perjury  is  assigned  in 
the  evidence  given  in  the  cause,  it  will  be  necessary,  not  only  to  pro- 
duce the  record,  but  to  give  evidence  of  so  much  of  the  state  of  the 
cause,  and  its  precise  posture  at  the  time  of  the  prisoner's  testifying, 
as  will  show  the  materiality  of  his  testimony."*^  In  a  recent  case 
in  which  the  defendant  was  charged  with  having  falsely  sworn  that 
he  did  not  commit  an  assault  on  his  wife,  the  state  was  allowed  to 
show  the  assault  and  all  that  occured  at  the  time  "in  order  to  develop 
the  materiality  of  the  issue  laid  in  the  indictment."^^ 

§  3082.  Record  of  former  proceedings. — To  show  that  the  false 
statement  was  made  in  a  judicial  proceeding,  and  that  it  was  a 
material  statement,  it  is  generally  proper  to  introduce  in  evidence 
the  proceedings  of  the  former  trial  upon  which  the  perjury 
was  committed,  and  to  show  defendant's  testimony  upon  that  trial.^* 

Reg.  v.  Gibbons,  9  Cox  Cr.  Cas.  105;  or  a  duly  autlienticated  transcript, 

Williams  v.  State,  68  Ala.  551;  Peo-  is   necessary   to   prove   the   judicial 

pie  V.  Barry,  63  Cal.  62;    People  v.  proceedings);    Partain  v.    State,   22 

Courtney,     94    N.    Y.    490;     United  Tex.  App.  100,  2  S.  W.  854;  People  v. 

States  V.  Landsberg,  21  Blatchf.  (U.  Macard,    109    Mich.    623,    67    N.    W. 

S.)   169,  23  Fed.  585.  968;   Kitchen  v.  State,  26  Tex.  App. 

"^Hamper's    Case,     3     Leon    230;  165,  9  S.  W.  461;  Smith  v.  State,  31 

Wood  V.  People,  59  N.  Y.  117;    Pol-  Tex.    Cr.   App.    315,    20    S.    W.    707; 

lard  V.  People,  69  111.  148,  154.  Rogers   v.    State,   35    Tex.    Cr.   App. 

^-  3  Greenleaf  Ev.,  §  197.  221,  32  S.  W.  1044,  holds  that  where 

**=  Townley     v.     State,     (Tex.     Cr.  it  appeared  that  the  false  testimony 

App.)  81  S.  W.  309.  was  given  upon  another  date  than 

**  Heflin  v.  State,  88  Ga.  151,  14  S.  the    one   on   the   certificate,    it   was 

E.  112,  30  Am.  St.  147   (stating  also  proper  to  show  that  the  certificate 

that,  as  a  general  rule,  the  record,  was  not  correctly  dated. 


397  RECORD  OF  FORMER  PROCEEDINGS.   [§§  3083,  3084. 

The  original  pleadings,  rulings  and  judgment  of  the  court  in  the  case 
in  which  the  perjury  is  alleged  to  have  heen  committed  may  be  shown 
in  evidence,  where  the  final  judgment  is  not  made  up.**  As  said  by 
a  recent  writer:'*''  "The  files  of  the  case  in  which  perjury  is  charged 
to  have  been  committed  are  competent  to  show  the  pendency  and 
regularity  of  that  case.''*'^  If  the  charge  of  perjury  is  based  on  evi- 
dence given  on  the  trial  of  a  cause,  in  addition  to  the  production  of 
a  record,  the  previous  evidence  and  state  of  the  cause  should  be  proven, 
or  at  least  so  much  of  it  as  shows  that  the  matter  sworn  to  was  ma- 
terial to  the  issue  or  point  in  question.*^  "But  it  is  said  that  if  the 
defendant  is  being  tried  for  perjury  before  the  same  court  in  which 
the  testimony  was  given  in  the  former  proceeding,  it  is  not  necessary 
to  produce  a  copy  of  the  record  as  the  court  will  be  presumed  to  know 
its  own  record.'"*^ 

§  3083.  Best  evidence. — Where  the  indictment  alleges  a  false  affi- 
davit or  any  instrument  under  oath  and  part  of  the  record  of  the  court, 
and  by  the  defendant  signed  and  sworn,  such  instrument  is  generally 
the  best  evidence.*"^  So,  where  the  indictment  is  for  perjury  alleged 
to  have  been  committed  on  the  trial  of  a  cause  in  a  court  of  record, 
unless  formal  proof  is  waived  or  otherwise  dispensed  with,  the  record, 
or  a  duly  certified  transcript,  if  permitted,  must  generally  be  intro- 
duced."^ But  secondary  evidence  may  be  admissible  in  a  proper 
case  after  laying  the  necessary  foundation,  and,  as  elsewhere  shown, 
the  testimony  of  the  witness,  not  a  part  of  the  record,  and  the  identity 
of  the  accused  may  be  shown  in  a  proper  case  by  parol  evidence."^ 

§  3084.  Stenographer's  notes. — It  frequently  happens  that  there  is 
no  record  of  the  evidence  taken  at  the  former  trial  and  that  the 

^  Smith  V.  State,  103  Ala.  57,  15  39  Tex.  Cr.  App.  479,  46  S.  W.  826; 

So.  866;  People  v.  Macard,  109  Mich.  3  Starkie  Ev.,  1142. 

623,  27  N.  W.  968;  Boynton  v.  State,  ""United     States     v.     Erskine,     4 

77   Ala.   29;    Williams   v.    State,    68  Cranch  (U.  S.)  299,  25  Fed.  Cas.  No. 

Ala.  551;    McMurry  v.  State,  6  Ala.  15057. 

324.  ^"United  States  v.  Walsh,  22  Fed. 

«"  Hughes  Cr.  Law  &  Proc,  §  1653.  644;     but    see,    Schmidt    v.    United 

"'People  V.  Macard,  109  Mich.  623,  States,  133  Fed.  257. 

67  N.  W.  968;  Martinez  v.  State,  39  '"  Heflin  v.  State,  88  Ga.  151,  14  S. 

Tex.    Cr.   App.    479,   46    S.    W.    826;  E.  112;   2  Bishop  Cr.  Proc,  §  933b; 

Smith  V.  State,  103  Ala.  57,  15   So.  2  Starkie  Ev.  859;  2  Chitty  Cr.  Law 

866.  312a;  Wharton  Cr.  Law,  §  1326. 

»'  Young  v.  People,  134  111.  37,  42  '•'-  See,  People  v.  Jan  John,  144  Cal. 

24  N.  E.  1070;  see,  Martinez  v.  State,  284,  77  Pac.  950. 


§  3085.]  PERJURY.  398 

alleged  false  testimony  can  be  shown  only  by  the  oral  evidence  of 
some  one  who  heard  it  given  or  by  the  stenographer  from  his  notes. 
It  is  proper  to  permit  a  stenographer  who  took  the  testimony  of  the 
defendant  in  the  case  in  which  perjury  is  charged  to  have  been  com- 
mitted to  read  from  his  notes,  when  he  swears  that  he  can  give  it 
just  as  the  defendant  gave  it  in  court.'*^  Such  evidence  would  seem 
to  be  admissible  to  prove  the  testimony  alleged  to  be  false,  upon  which 
the  perjury  is  assigned,  and  also  as  bearing  upon  the  question  of  its 
materiality. 

§  3085.  Parol  evidence. — The  prosecution  in  a  perjury  case  may 
generally  show  by  parol  evidence  what  the  defendant  swore  to  in  the 
former  proceedings,^*  and  the  mere  fact  that  the  witness  is  unable 
to  give  an  accurate  and  detailed  account  of  the  entire  testimony  as 
given  by  the  defendant  in  the  former  proceeding,  will  not  prevent  him 
from  testifying  to  the  particular  part  on  which  the  perjury  is  as- 
signed.^^  It  is  also  held  in  a  recent  case  that  on  the  trial  of  a  prose- 
cution for  perjury  committed  in  a  naturalization  proceeding,  the  de- 
fendant's signature  to  affidavits  filed  in  the  proceeding  is  admissible 
to  prove  the  fact  that  he  was  a  witness  therein,  although  such  affi- 
davits, when  signed,  were  in  blank;  that  the  provision  of  the  Act  of 
Congress  that  all  courts  shall,  before  issuing  a  final  order  or  certificate 
of  naturalization,  "cause  to  be  entered  of  record  the  affidavit  of  the  ap- 
plicant and  of  his  witness,  so  far  as  applicable,  reciting  and  affirming 
the  truth  of  every  material  fact  requisite  to  naturalization,"  does 
not  limit  the  evidence  which  may  be  taken  in  the  proceeding  to  the 
affidavits  so  entered  of  record;  and  that  on  the  trial  of  a  person  for 
perjury  committed  in  such  a  proceeding,  oral  evidence  is  admissible 
to  show  the  commission  of  the  offense.*"^ 

«=  People  v.  Macard,  109  Mich.  623,  People  v.  Macard,  109  Mich.  G23,  67 

67  N.  W.  968;    State  v.  Camley,  67  IN.  W.  968. 

Vt.   322,   31   Atl.   840;    see,   State   v.  '^  Hutcherson  v.  State,  33  Tex.  Cr. 

Gibbs,    10    Mont.    213,    25    Pac.    289  App.    67,    24    S.   W.    908;    Taylor   v. 

(parol  evidence);  see  also,  Heflin  v.  State,  48  Ala.  157;   see  also.  Rex  v. 

State,  88  Ga.   151,  14  S.  E.  112,  30  Jones,    1    Peake    N.    P.    37;    United 

Am.  St.  147.  States  v.  Erskine,  4  Cranch  (U.  S.) 

"^  State  v.  Gibbs,  10  Mont.  213,  25  299,  25  Fed.  Gas.  No.  15057. 

Pac.  289,  10  L.  R.  A.  749;  People  v.  ""Schmidt  v.    United    States,    133 

Curtis,   50   Cal.   95;    Commonwealth  Fed.  257. 
V.    Farley,    Thacher    Cr.    Cas.    654; 


399     RES  GESTAE — CIRCUMSTANTIAL  EVIDENCE.     [§§  3086,  3087. 

§  3086.  R€s  gestae. — Evidence  of  the  defendant's  acts  and  declara- 
tions at  the  time  of  or  immediately  preceding  the  giving  of  the  alleged 
false  testimony  is  admissible  in  a  proper  case  as  being  part  of  the  res 
gestae,  and  material  as  showing  inducement.^^  The  whole  res  gestae, 
including  declarations  of  the  defendant  made  at  the  time  may  be 
shown  as  tending  to  prove  that  his  testimony  as  to  some  of  the 
particulars  was  false.''^  So,  in  a  prosecution  for  perjury,  where  it  was 
charged  that  defendant  swore  that  he  did  not,  on  a  particular  ac- 
casion,  assault  his  wife,  it  was  held  competent  for  the  state  to  show, 
in  connection  with  testimony  of  the  assault,  what  occured  at  the  time, 
in  order  to  develop  the  materiality  of  the  issue  laid  in  the  indict- 
ment.^® 

§  3087.  Circumstantial  evidence. — Although,  as  shown  in  another 
section,  certain  matters  in  a  prosecution  for  perjury  must  be  estab- 
lished by  at  least  one  witness  and  corroborating  circumstances,  yet 
this  does  not  mean  that  circumstantial  evidence  is  not  admissible. 
Whether  it  is  sufficient,  of  itself,  to  support  a  conviction  is  another 
question.  It  is  generally  admissible  as  in  other  cases,^""  although  more 
or  different  evidence  may  also  be  required  as  to  some  matters.  Thus, 
circumstantial  evidence  is  admissible  in  a  proper  case,  to  show  the 
truth  or  falsity  of  defendant's  statement  upon  the  former  trial.^**^ 
The  falsity  of  other  and  correlative  facts  may  be  shown  in  a  proper 
case  as  tending  to  show  defendant's  testimony  false.^"^  And  where 
the  indictment  charged  immaterial  as  well  as  material  matters  alleged 
to  be  perjury,  evidence  of  the  immaterial  matter  was  held  competent 
where  it  showed  that  the  testimony  on  the  material  matter  was  wil- 
fully false  and  not  given  by  mistake.^"^     So,  on  a  prosecution  for 

°"Tuttle  V.  People,  36  N.  Y.  431;  '""See,  Beach  v.  State,  32  Tex.  Cr. 

State  V.  Curtis,  12  Ired.  L.  (N.  Car.)  App.    240,    22    S.    W.    976;     United 

270;    see  also,  Spencer  v.  Common-  States  v.  Wood,  14  Pet.  (U.  S.)  430; 

wealth,  15  Ky,  L.  R.  182,  22  S.  W.  2  Bishop  Cr.  Proc,  §  932. 

559.  ^01  State  v.  Swafford,  98  Iowa  362, 

^'Heflin  v.  State,  88  Ga.  151,  14  S.  67  N.  W.  284;  Eighmy  v.  People,  79 

E.    112,    30   Am.    St.    147;    see   also,  N.  Y.  546;  see,  Harkreader  v.  State, 

Hughes  Cr.  Law  &  Proc,  §  1659.  35  Tex.  Cr.  App.  243,  33  S.  W.  117, 

"^Townley     v.     State,     (Tex.     Cr.  60   Am.    St.   40;    Reavis   v.    State,   6 

App.)   81  S.  W.  309.    "As  a  part  of  Wj-o.  240,  44  Pac.  62. 

the  res  gestae,"  says  the  court,  "was  "=  Cordway  v.  State,  25  Tex.  App. 

appellant's  cursing  and   abusing  of  405,  8  S.  W.  670;  Brown  v.  State,  57 

her."     See   also,    Atchison   v.    State,  Miss.  424. 

44  Tex.  Cr.  App.  551,  72  S.  W.  998.  ^»=  Jefferson    v.     State,     (Tex.    Cr. 


§§  3088,  3080.]  PERJURY.  .  400 

perjury,  the  criminal  record  of  such  person  in  other  cases  than  the 
one  in  which  the  perjury  is  alleged  to  have  been  committed,  was 
held  admissible  against  the  defendant."*  If  the  falsity  of  the  state- 
ment upon  which  perjury  is  assigned  is  established  so  as  to  convince 
the  jury  beyond  a  reasonable  doubt,  it  is  sufficient,  even  though  the 
evidence  in  addition  to  that  of  one  witness  is  circumstantial.^ "^^ 

§  3088.  Admissions  and  confessions. — Admissions  made  by  de- 
fendant that  his  former  statements  under  oath  were  untrue  may  be 
used  against  him."*'  So,  letters  of  the  defendant  showing  that  goods 
cost  more  than  he  swore  they  cost  in  entering  them  at  the  custom 
house,  have  been  held  competent  as  admissions."^  It  has  also  been 
held  that  where  the  defendant  is  indicted  for  false  swearing,  the  con- 
fessions of  others  and  accomplices  are  admissible  to  prove  the  falsity 
of  defendant's  statements,  even  if  made  in  the  absence  of  defendant.^*'^ 
But  one  cannot  be  convicted  of  perjury  upon  proof  merely  that  at 
another  time  he  made  a  statement  contradicting  his  alleged  false 
statement.^''® 

§  3089.  Corroboration. — On  a  charge  of  perjury  the  state,  in  order 
to  convict,  must  usually  sliow  by  two  or  more  witnesses,  or  by  one 
witness  supported  by  corroborating  and  independent  circumstances, 
that  the  former  testimony  was  false. ^^*^    One  witness  may  be  sufficient 

App.)  29  S.  W.  1090;   see.  People  v.  '»« Martin    v.    State,    33    Tex.    Cr. 

Ah  Sing,  95  Cal.  657,  30  Pac.  797.  App.  317,  26  S.  W.  400. 

•"Jefferson    v.    State,     (Tex.    Cr.  '<*  Reg.  v.  Hughes,  1  Car.  &  Kir. 

App.)  29  S.  W.  1090.  519,  47  E.  C.  L.  519;  Jackson's  Case, 

•°*  See  authorities  cited  in  preced-  1  Lewis  C.  C.  270;  Peterson  v.  State, 
ing  notes;  also.  People  v.  Porter,  74  Ala.  34;  Freeman  v.  State,  19  Fla. 
104  Cal.  415,  38  Pac.  88;  People  v.  552;  State  v.  Buckley,  18  Ore.  228, 
Strassman,  112  Cal.  683,  45  Pac.  3;  22  Pac.  838;  Schwartz  v.  Common- 
People  v.  Maxwell,  118  Cal.  50,  50  wealth,  27  Gratt.  (Va.)  1025,  21  Am. 
Pac.  18;  Sloan  V.  State,  71  Miss.  877,  R.  365;  Brooks  v.  State,  29  Tex. 
16  So.  262;  Gandy  v.  State,  23  Neb.  App.  582,  16  S.  W.  542;  but  see, 
436,  36  N.  W.  817;  Crusen  v.  State,  Whitaker  v.  State,  37  Tex.  Cr.  App. 
10  Ohio  St.  258;  State  v.  Rutledge,  479,  36  S.  W.  253. 
(Wash.)  79  Pac.  1123.  ""United   States  v.   Hall,    (D.  C.) 

•""United  States  v.  De  Amador,  6  44  Fed.  864,  10  L.  R.  A.  324;  United 

N.  Mex.  173,  27  Pac.  488;   Littlefield  States  v.  Coons,  1  Bond    (U.  S.)    1, 

v.  State,  24  Tex.  App.  167,  5  S.  W.  25    Fed.    Cas.    No.    14860;    Galloway 

650;  Cordway  v.  State,  25  Tex.  App.  v.  State,  29  Ind.  442;   State  v.  Ray- 

405,  8  S.  W.  670.  mond,  20  Iowa  582;    State  v.  Jean, 

•"■United  States  v.  Wood,  14  Pet.  42  La.  Ann.  946,  8  So.  480;  Brown  v. 

(U.  S.)    430;    see  also,  Rex  v.  May-  State,  57  Miss.  424;   State  v.  Gibbs, 

hew,  6  Car.  &  P.  315,  25  E.  C.  L.  450.  10  Mont.  213,  25  Pac.  289,  10  L.  R. 


401  CORROBORATION.  [§    3039. 

to  prove  the  taking  of  the  oath,  but  one  witness,  without  supporting 
circumstances,  is  not  sufficient  to  establish  the  falsity  of  the  oath.^^'- 
It  was  formerly  held  that  two  witnesses  were  necessary,  as  otherwise 
it  would  be  oath  against  oath,  but  this  rule  no  longer  obtains.  In- 
deed, it  has  been  held  that  the  manner  and  testimony  of  the  de- 
fendant may  be  sufficient  corroboration  to  justify  a  conviction  upon 
the  testimony,  in  addition  to  one  witness  for  the  state.^^^  The  evi- 
dence corroborating  may  be  circumstantial,  but  it  must  relate  to  the 
material  part  and  must  be  sufficient  to  convince  the  jury.^^^  It  has 
been  held  that  proof  of  the  admissions  of  the  defendant  contrary  to 
his  statements  under  oath  may  be  sufficient  corroboration.^^*  But  it 
is  said  in  a  recent  cace  that  corroborative  evidence  in  this  connection 
means  evidence  aliunde  which  tends  to  show  the  perjury,  independent 
of  any  declaration  or  admission  of  the  prisoner,  and  that  the  evidence 
must  be  something  more  than  sufficient  to  counterbalance  the  oath  of 
the  prisoner  and  the  legal  presumption  of  his  innocence,  and  the  oath 
of  the  opposing  witness  will  not  avail,  unless  it  is  corroborated  by 
other  independent  circumstances;  but  that  the  additional  evidence 
need  not  be  such  as  standing  by  itself,  would  justify  a  conviction, 
where  the  testimony  of  a  single  witness  would  suffice  for  that  pur- 
pose,^^°  And  it  has  been  held  by  the  Supreme  Court  of  the  United 
States  that  there  may  be  cases,  where  the  evidence  is  documentary,  in 
which  no  living  witness  is  necessary.  "We  quote  from  the  opinion  as 
follows :  "If  we  will  but  recognize  the  principle  upon  which  circum- 
stances in  the  case  of  one  witness  are  allowed  to  have  any  weight, 
that  principle  will  carry  us  out  to  the  conclusion  that  circumstances, 
without  any  witness,  when  they  exist  in  documentary  or  written 

A.  749;  Gandy  v.  State,  23  Neb.  436,  that  the  evidence   in  question   was 

36  N.  W.  817,  44  N.  W.  108;  State  v.  false. 

Peters,  107  N.  Car.  876,  12  S.  E.  74;  "-"State  v.  Miller,  24  W.  Va.  802. 

Beach  v.  State,  32  Tex.  Cr.  App.  240,  "^  Hernandez    v.    State,    18    Tex. 

22  S.  W.  976;  see,  85  Am.  Dec.  488,  App.  134,  51  Am.  R.  295;   Beach  v. 

note;  10  L.  R.  A.  324,  749,  note.  State,  32  Tex.  Cr.  App.  240,  22  S.  W. 

"^People   V.    Hayes,    70    Hun    (N.  976. 

Y.)   Ill,  24  N.  Y.  S.  194,  140  N.  Y.  "^Hemphill  v.  State,  71  Miss.  877, 

484,  35  N.  E.  951,  37  Am.  St.  572,  23  16  So.  261;    State  v.  Blize,  111  Mo. 

L.  R.  A.  830;  United  States  v.  Hall,  464,  20  S.  W.  210;  State  v.  Molier,  12 

(D.  C.)  44  Fed.  864,  10  L.  R.  A.  324,  N.  Car.  263. 

holds  that  one  witness  is  sufficient  "=  State  v.  Hunter,  181  Mo.  316,  80 

to  establish  every  allegation  of  the  S.  W.  955. 
indictment,    except    the    allegation 
Vol.  4  Elliott  Ev.— 26 


§  3089.]  PERJURY.  402 

testimony,  may  combine  to  establish  the  charge  of  perjury;  as  they 
may  combine,  together  unaided  by  oral  proof,  except  the  proof  of 
their  authenticity,  to  prove  any  other  fact  connected  with  the  declara- 
tions of  persons  or  business  of  human  life.  That  principle  is,  that 
circumstances  necessarily  make  up  a  part  of  the  proofs  of  human 
transactions;  that  such  as  have  been  reduced  to  writing  in  unequivo- 
cal terms,  when  the  writing  has  been  proved  to  be  authentic,  cannot 
be  made  more  certain  by  evidence  aliunde;  and  that  such  as  have 
not  been  reduced  to  writing,  whether  they  relate  to  the  declarations 
or  conduct  of  men,  can  only  be  proved  by  oral  testimony.  If  it  be 
true,  then,  and  it  is  so,  that  the  rule  of  a  single  witness,  being  insuf- 
ficient to  prove  perjury  rests  upon  the  law  of  a  presumptive  equality 
of  credit  between  persons,  or  upon  what  Starkie  terms,  the  appre- 
hension that  it  would  be  unsafe  to  convict  in  a  case  where  there  is 
merely  the  oath  of  one  man  to  be  weighed  against  that  of  another; 
satisfy  the  equal  claim  to  belief,  or  remove  the  apprehension,  by  con- 
curring written  proofs,  which  existed,  and  are  proved  to  have  been 
in  the  knowledge  of  the  person  charged  with  the  perjury  when  it  was 
committed,  especially  if  such  written  proofs  came  from  himself,  and 
are  facts  which  he  must  have  known,  because  they  were  his  own 
acts ;  and  the  reason  for  the  rule  ceases.  In  what  cases,  then,  w411  the 
rule  not  apply  ?  Or  in  what  cases  may  a  living  witness  to  the  corpus 
delicti  of  a  defendant  be  dispensed  with,  and  documentary  or  written 
testimony  be  relied  upon  to  convict?  We  answer,  to  all  such  where  a 
person  is  charged  with  a  perjury,  directly  disproved  by  documentary 
or  w^ritten  testimony  springing  from  himself,  with  circumstances 
showing  the  corrupt  intent.  In  cases  where  the  perjury  charged  is 
contradicted  by  a  public  record,  proved  to  have  been  well  known  to  the 
defendant  when  he  took  the  oath ;  the  oath  only  being  proved  to  have 
been  taken.  In  cases  where  a  party  is  charged  with  taking  an  oath, 
contrary  to  what  he  must  necessarily  have  known  to  be  the  truth, 
and  the  false  swearing  can  be  proved  by  his  own  letters,  relating  to 
the  fact  sworn  to,  or  by  other  written  testimony  existing  and  being 
found  in  the  possession  of  a  defendant,  and  which  has  been-  treated  by 
him  as  containing  the  evidence  of  the  fact  recited  by  it."^^®  In  a  re- 
cent case  in  Texas,  it  is  held  that  the  general  reputation  of  the  cor- 
roborating witness  for  truth  and  veracity  may  be  inquired  into  and 
that  where  the  general  reputation  of  such  corroborating  witness  for 
truth  and  veracity  is  bad  and  he  is  contradicted  by  an  unimpeached 

"''United  States  v.  Wood,  14  Pet.    (U.  S.)  430,  441,  442. 


403  DEFENSES.  [§    3000. 

and  disinterested  witness,  such  testimony  will  not  be  sufficient  to  sup- 
port a  conviction.^  ^'^ 

§  3090.  Defenses. — Proper  evidence  is,  of  course,  admissible  on 
behalf  of  the  defendant  to  rebut  and  disprove  the  prima  facie  case 
made  by  the  prosecution.  He  may,  for  instance,  introduce  evidence 
fairly  tending  to  show  that  the  oath  or  testimony  on  which  perjury 
is  assigned  was  true  and  not  false,  or  that  it  was  not  on  a  material 
matter.^  ^^  So,  he  may  show,  in  a  proper  case,  that  the  court  or  of- 
ficer before  whom  the  oath  was  taken  had  no  jurisdiction  or  authority, 
and  this  will  constitute  a  good  defense,^^^  but,  as  already  shown, 
mere  irregularities  and  the  like  are  not,  ordinarily,  jurisdictional, 
and  there  are  some  limitations  upon  collateral  attacks.  Evidence  of 
the  intoxication  of  the  accused  has  also  been  held  admissible  in  his 
behalf  where  it  tends  to  show  that  he  could  not  have  sworn  wilfully 
and  corruptly.^-"  On  the  other  hand,  where  the  defendant  on  trial 
for  any  charge,  falsely  swears  that  he  did  not  commit  the  unlawful 
act,  the  fact  that  he  was  justified  or  acted  in  self-defense  in  so  act- 
ing, is  immaterial  in  his  trial  for  perjury.^ ~^  Nor  is  the  judgment  of 
acquittal  in  the  former  case  admissible  to  show  the  defendant's  inno- 
cence,^ ^^  although  such  evidence  has  been  held  admissible  as  matter 

"'Kitchen  v.  State,  29  Tex.  App.  wealth,  11  Bush   (Ky.)   169;   United 

45,   14  S.  W.   392.    But  in  prosecu-  States   v.    Curtis,   107    U.    S.    671,   2 

tions  for  perjury,  as  in  other  cases.  Sup.  Ct.  507;  2  Hawkins  P.  C.  (7th 

hearsay  evidence,  not  coming  with-  ed.)    86;    Roscoe  Cr.   Ev.    (7th  Am. 

in  any  of  the  recognized  exceptions,  ed.)  817;  2  Wharton  Cr.  Law,  §  1256; 

is   inadmissible.    Pollard   v.   People,  2  Archbold  Cr.  Proc.  &  PI.  (8th  ed.) 

69  111.  148;  State  v.  Fannon,  158  Mo.  1722;  Muir  v.  State,  8  Blackf.  (Ind.) 

149,  59  S.  W.  75;  Maines  V.  State,  23  154;     Commonwealth    v.    White,    8 

Tex.  App.  568,  5  S.  W.  123;   Reavis  Pick.  (Mass.)  453;  State  v.  Furlong, 

V.  State,  6  Wyo.  240,  44  Pac.  62.  26   Me.    69;    Hitesman   v.    State,    48 

"'See,  State  v.  Brown,  68   N.  H.  Ind.  473. 

200,  38  Atl.  731;  State  v.  Hattaway,  ""Lytle  v.  State,  31  Ohio  St.  196. 

2  N.  &  McC.  (S.  Car.)  118;  Hinch  v.  Or  that  the  testimony  was  given  by 

State,  2  Mo.  158.  surprise,  inadvertence  and  under  an 

""Lambert  V.  People,  76  N.  Y.  220;  excusable  mistake.    Rex  v.  Melling, 

Jackson  v.  Humphrey,  1  Johns.   (N.  5  Mod.  349;    State  v.  Woolverton,  8 

Y.)  498;  Rex  V.  Cohen,  1  Stark.  416;  Blackf.    (Ind.)    452;    Harp  v.  State, 

see  also,  Urquhart  v.  State,  103  Ala.  59  Ark.  113,  26  S.  W.  714. 

90,  16  So.  17;   Walker  v.  State,  107  '"  Hutcherson  v.  State,  33  Tex.  Cr. 

Ala.  5,  18   So.   393;    Commonwealth  App.  67,  24  S.  W.  908. 

V.    Hillehbrand,    96    Ky.    407,    29    S.  ^--  Hutcherson  v.  State,  33  Tex.  Cr. 

W.    287;     Biggerstaff    v.    Common-  App.  67,  24  S.  W.  908;  see  also.  State 


§  3091.] 


PERJURY. 


404 


of  inducement.^"  So,  it  has  been  said  that  the  fact  that  an  affiant 
merely  stated  in  his  affidavit  that  he  believed  it  to  be  true  is  no  de- 
fence, where  such  alleged  belief  is  unreasonable  and  has  no  basis."* 
And  the  fact  that  the  false  testimony  was  in  an  affidavit  or  deposition 
which  was  not  used  on  the  trial  in  which  it  was  taken  for  use,  is  not  a 
good  defense^^^  at  least  under  most  of  the  statutes. 

§  3091.  Variance. — As  already  shown,  it  is  not  always  necessary 
to  prove  everything  in  the  indictment  upon  which  perjury  is  assigned, 
and  where  there  are  several  distinct  assignments  it  is  generally  suffi- 
cient to  prove  any  one  of  them.^^®  So,  proof  of  the  substance  of  the 
testimony  on  which  perjury  is  assigned,  where  the  meaning  is  fairly 
shown,  is  generally  sufficient.^-^  Variances  as  to  time  and  date  are  not 
always  fatal,"^  but  they  may  be  so."''  A  variance  in  regard  to 
whether  the  officer  before  whom  the  perjury  was  alleged  to  have  been 
committed  was  elected  or  appointed  has  been  held  immaterial,^ ^^  but 
where  the  indictment  alleged  that  the  defendant  was  sworn  by  the 
county  clerk  and  the  evidence  showed  that  he  was  sworn  by  a  city 


V.  Caywood,  96  Iowa  373,  65  N.  W. 
385;  State  v.  Williams,  60  Kans.  837, 
58  Pac.  476;  but  see.  Cooper  v.  Com- 
monwealth, 21  Ky.  L.  R.  546,  51  S. 
W.  789,  45  L.  R.  A.  216. 

i=«  Davidson  v.  State,  22  Tex.  App. 
373,  3  S.  W.  662;  Kitchen  v.  State, 
26  Tex.  App.  172,  9  S.  W.  461.  But 
these  authorities  also  hold  that  the 
jury  should  be  instructed  that  it  is 
limited  to  that  purpose  or  at  least 
that  it  should  not  be  considered  as 
proving  or  disproving  perjury. 

"*  See,  Johnson  v.  People,  94  111. 
513,  514;  Commonwealth  v.  Cornish, 
6  Binn.  (Pa.)  249;  Rex  v.  Pedley,  1 
Leach  365. 

^"■'  Shell  v.  State,  148  Ind.  50,  47  N. 
E.  144;  State  v.  Whittemore,  50  N. 
H.  245;  Reg.  v.  Vreones,  L.  R. 
(1891)  1  Q.  B.  360;  see  also.  People 
V.  Naylor,  82  Cal.  607,  23  Pac.  116; 
United  States  v.  Volz,  14  Blatchf. 
(U.  S.)  15;  but  compare,  State  v. 
Joaquin,  69  Me.  218;  Jacobs  v.  State, 


61  Ala.  448;  People  v.  Fox,  25  Mich. 
492. 

"'State  v.  Hascall,  6  N.  H.  352; 
State  V.  Blaisdell,  59  N.  H.  328; 
Commonwealth  v.  Johns,  6  Gray 
(Mass.)  274;  State  v.  Day,  100  Mo. 
242,  12  S.  W.  365;  Marvin  v.  State, 
53  Ark.  395,  14  S.  W.  87;  State  v. 
Bordeaux,  93  N.  Car.  560;  Smith  v. 
State,  103  Ala.  57,  15  So.  866;  Har- 
ris v.  People,  64  N.  Y.  148. 

"'Rex  V.  Leefe,  2  Campb.  134; 
Rex  V.  Jones,  1  Peake  N.  P.  37;  Tay- 
lor V.  State,  48  Ala.  157. 

"*  Matthews  v.  United  States,  161. 
U.  S.  500,  16  Sup.  Ct.  640;  see  also. 
Commonwealth  v.  Monahan,  9  Gray 
(Mass.)   119. 

^=«Reg.  v.  Bird,  17  Cox  Cr.  Cas. 
387.  As  where  the  indictment  is 
based  upon  a  writing  set  out  in  haec 
verba.  Dill  v.  People,  19  Colo.  469, 
36  Pac.  229,  41  Am.  St.  254;  State 
v.  Ammons,  3  Murph.  (N.  Car.)  123. 

"» State  V.  Williams,  60  Kans.  837, 
58  Pac.  476. 


405 


VARIANCE. 


[§  3091. 


clerk,  it  was  held  a  fatal  variance.^"    Other  cases  showing  what  is  or 
is  not  a  fatal  variance  are  cited  below.^^^ 


">  McClerkin  v.  State,  105  Ala.  107, 
17  So.  123;  see  also.  Cutler  v.  Terri- 
tory, 8  Okla.  101,  56  Pac.  861;  but 
compare,  People  v.  Nolte,  19  Misc. 
(N.  Y.)  674,  44  N.  Y.  S.  443;  Staight 
V.  State,  39  Ohio  St.  496;  2  Wharton 
Cr.  Law  (9th  ed.),  §  1287. 

"^Variance  held  fatal  or  sub- 
stance of  issue  not  proved  in,  Dill  v. 
People,  19  Colo.  469,  36  Pac.  229,  41 
Am.  St.  254;  Wilson  v.  State,  115 
Ga.  206,  41  S.  E.  696,  90  Am.  St.  104; 
Hitesman    v.    State,    48    Ind.    473; 


Walker  v.  State,  96  Ala.  53,  11  So. 
401;  Gandy  v.  State,  27  Neb.  707,  43 
N.  W.  747,  44  N.  W.  108;  Sapping- 
ton  V.  State,  114  Ga.  269,  40  S.  B. 
241;  People  v.  Strassman,  112  Cal. 
683,  45  Pac.  3;  variance  held  imma- 
terial, see.  State  v.  Caywood,  96 
Iowa  367,  65  N.  W.  385;  Atchison  v. 
State,  44  Tex.  Cr.  App.  551,  72  N.  W. 
998;  Stefani  v.  State,  124  Ind.  3,  24 
N.  E.  254;  see  also,  99  Am.  Dec.  351, 
note;  87  Am.  Dec.  471,  note;  17  Am. 
Dec.  563,  note. 


CHAPTER  CXLIX. 


RAPE. 


Sec. 

Sec. 

3092. 

Generally. 

3102. 

Corroboration. 

3093. 

Burden  of  proof. 

3103. 

Admissions  and  confessions. 

3094. 

Presumptions. 

3104. 

Evidence      generally — Circum- 

3095. 

Age  of  prosecutrix. 

stantial  evidence. 

3096. 

Consent. 

3105. 

Other  offenses. 

3097. 

Resistance. 

310fi. 

Real  evidence. 

3098. 

Res  gestae. 

3107. 

Physical       examination       anc 

3099. 

Complaint. 

medical  testimony. 

3100. 

Complaint — Particulars. 

3108. 

Defenses. 

3101. 

Character  and  reputation. 

3109. 

Variance. 

§  3092.  Generally. — Rape  is  the  carnal  knowledge  of  a  woman  by 
a  man,  forcibly  and  unlawfully,  without  her  consent  or  against  her 
will;  or,  of  a  female  child  under  the  age  of  ten  years,  or  under  such 
age  as  the  statute  of  the  jurisdiction  provides,  with  or  without  her 
consent.^  By  consent  is  meant  a  conscious  permission,  and  evidence 
of  fraud  or  fright  is  proper  to  prove  the  lack  of  consent.-  Evidence 
may  be  introduced  to  show  that  at  the  time  the  prosecuting  witness  was 
not  capable  of  giving  consent,  or  that  the  woman  had  no  will,  as  when 
insane,  an  infant  under  the  statutory  age  of  consent,  drugged  or 
asleep.^    Penetration  is  essential,'*  but  it  may  be  very  slight,  and  may 


^Don  Moran  v.  People,  25  Mich. 
356,  359,  12  Am.  R.  283;  State  v. 
Pickett,  11  Nev.  255,  21  Am.  R.  754; 
Croghan  v.  State.  22  Wis.  444;  Sut- 
ton v.  People,  145  111.  279,  34  N.  E. 
420;  4  Blackstone  Comm.  210;  1 
East  P.  C.  434. 

^  Commonwealth  v.  Burke,  105 
Mass.  376,  7  Am.  R.  531;  Turner  v. 
People,  33  Mich.  363;  State  v.  Ward, 
73  Iowa  532,  35  N.  W.  617;  Huston  v. 
People,  121  111.  497,  13  N.  E.  538. 

'2  Bishop  Cr.  Law  1115;  1  Hale 
P.  C.  629;  Hawkins  P.  C,  chap.  41; 
Reg.  v.  Mayers,  12  Cox  Cr.  Cas.  311; 


Reg.  V.  Barratt,  12  Cox  Cr.  Cas.  498; 
Reg.  V.  Woodhurst,  12  Cox  Cr.  Cas. 
443;  Moody  v.  People,  20  111.  316, 
319;  State  v.  Cunningham,  100  Mo. 
382,  12  S.  W.  376;  Felton  v.  State, 
139  Ind.  531,  39  N.  E.  228;  Pomeroy 
V.  State,  94  Ind.  96;  Coates  v.  State, 
50  Ark.  330,  7  S.  W.  304;  Common- 
wealth V.  Murphy,  165  Mass.  66,  42 
N.  E.  504;  Commonwealth  v.  Burke, 
105  Mass.  376,  7  Am.  R.  531;  Hughes 
Cr.  Law  &  Proc,  §  285,  et  seq.;  Un- 
derhill  Cr.  Ev.,  §  407. 

^  State  V.  Grubb,  55  Kans.  678,  41 
Pac.  951;    State  v.   Dalton,  106   Mo. 


406 


407 


BURDEN    OF    I'UOOF. 


[§    3393. 


be  proved  by  circumstantial  evidence/  and  actual  emission,  if  ever 
necessary,  is  no  longer  required  to  be  shown.*^ 

§  3093.  Burden  of  proof. — Actual  carnal  knowledge  must  be 
shown,  either  by  direct  or  indirect  evidence.''  The  burden  is  upon  the 
state  to  prove  penetration,^  but  evidence  which  shows  the  least  pene- 
tration is  sufficient.''  The  prosecution  must  also  show  that  force, 
either  actual  or  constructive  was  used,^°  and  that  there  was  sufficient 
force  to  accomplish  a  penetration.^^  If  the  state  can  show  that  the 
woman  submitted  through  fear  of  violence  or  because  of  threats  of 


463,  17  S.  W.  700;  Hardtke  v.  State, 
67  Wis.  552,  30  N.  W.  723. 

^  State  v.  Carnagy,  106  Iowa  483, 
76  N.  W.  805;  People  v.  Crowley,  102 
N.  Y.  234,  6  N.  E.  384;  Taylor  v. 
State,  111  Ind.  279,  12  N.  E.  400; 
Brauer  v.  State,  25  Wis.  413;  Word 
V.  State,  12  Tex.  App.  174. 

^Waller  v.  State,  40  Ala.  325; 
State  V.  Shields,  45  Conn.  256; 
Barker  v.  State,  40  Fla.  178, -24  So. 
69;  Taylor  v.  State.  Ill  Ind.  279, 
tl2  N.  E.  400;  White  v.  Common- 
wealth, 96  Ky.  180,  28  S.  W.  340; 
Bean  v.  People,  124  111.  576,  16  N. 
E.  656;  People  v.  Courier,  79  Mich. 
366,  44  N.  W.  571;  People  v.  Crow- 
ley, 102  N.  Y.  234,-6  N.  E.  384;  Corn- 
stock  V.  State,  14  Neb.  205,  15  N.  W. 
355;  State  v.  Hargrave,  65  N.  Car. 
466;  Osgood  v.  State,  64  Wis.  472, 
25  N.  W.  529;  Davis  v.  State,  43 
Tex.  189;  see  also,  Reg.  v.  Lines, 
1  Car.  &  Kir.  393,  47  E.  C.  L.  393; 
1  Hale  P.  C.  628;  2  Bishop  Cr.  Law 
1085. 

'  Hardtke  v.  State,  67  Wis.  552,  30 
N.  W.  723;  Davis  v.  State,  43  Tex. 
189;  Wesley  v.  State,  65  Ga.  731; 
Erauer  v.  State,  25  Wis.  413;  Hanes 
V.  State,  155  Ind.  112,  57  N.  E.  704 
(circumstantial  evidence)  ;  State  v. 
Welch,  41  Ore.  35,  68  Pac.  808 
(same). 

"Taylor  v.  State,  111  Ind.  279.  12 
N.  E.  400;  People  v.  Crowley,  102  N. 


Y.  234,  6  N.  E.  384;  Brauer  v.  State, 
25  Wis.  413;  Audley's  Case,  3  How. 
St.  Tr.  401. 

'  Taylor  v.  State,  111  Ind.  279,  12 
N.  E.  400;  People  v.  Crowley,  102  N. 
Y.  234,  6  N.  E.  384;  State  v.  Shields, 
45  Conn.  256;  Bean  v.  People,  124 
111.  576.  16  N.  E.  656;  People  v.  Har- 
lan, 133  Cal.  16,  65  Pac.  9;  Ellis  v. 
State,  25  Fla.  702,  6  So.  768;  Wesley 
V.  State,  65  Ga.  731;  State  v.  Rol- 
lins, 80  Minn.  216,  83  N.  W.  141; 
State  V.  Monds,  130  N.  Car.  697,  41 
S.  E.  789;  Commonwealth  v.  Hollis, 
170  Mass.  433,  49  N.  E.  632;  Bailey 
v.  Commonwealth,  82  Va.  107,  3  Am. 
St.  87;  Murphy  v.  State,  108  Wis. 
Ill,  83  N.  W.  :l112. 

"State  V.  Murphy,  6  Ala.  765,  41 
Am.  Dec.  79;  Dawson  v.  State,  29 
Ark.  116;  Garrison  v.  People,  6  Neb. 
274;  Osgood  v.  State,  64  Wis.  472, 
25  N.  W.  529;  Mills  v.  State,  52  Ind. 
187;  Brown  v.  Commonwealth,  102 
Ky.  227,  43  S.  W.  214;  State  v.  Wil- 
liams, 32  La.  Ann.  335,  36  Am.  R. 
272;  Commonwealth  v.  Fogerty,  8 
Gray  (Mass.)  489,  69  Am.  Dec.  264; 
Williams  v.  State,  (Tex.  App.)  13 
S.  W.  609. 

^'  Commonwealth  v.  McDonald. 
110  Mass.  405;  The  prosecuting  wit- 
ness may  be  asked  whether  the  in- 
tercourse caused  her  pain.  People 
V.  Flynn,  96  Mich.  276.  55  N.  W. 
834. 


3094.] 


RAPE. 


40& 


violence,  it  is  sufficient  to  prove  that  force  was  used/^  but  it  is  held 
that  her  will  must  be  so  entirely  overcome  by  the  fear  as  to  prevent 
resistance.^^  The  burden  is  upon  the  state  to  prove  a  boy  under  fourteen 
years  of  age  physically  capable  of  committing  rape,  as  he  is  pre- 
sumed to  be  incapable.^*  The  burden  is  upon  the  state  in  such  a  prose- 
cution, as  in  all  other  prosecutions,  to  prove  beyond  a  reasonable  doubt 
the  guilt  of  the  defendant.^^  The  state  must,  in  general,  prove  all  the 
material  allegations  of  the  indictment,  but  it  has  been  held  that  the 
state  need  not  affirmatively  show  the  prosecutrix  to  be  of  good  repute ; 
the  burden  is  upon  the  defendant  to  show  her  bad  repute.^®  It  is 
upon  the  state,  however,  to  show  where  the  indictment  is  for  rape  of  a 
child  under  the  statutory  age  of  consent,  that  the  child  was  under  the 
statutory  age;^^  and  in  other  cases  the  burden  is  upon  the  state  to  show 
want  of  consent.^® 

§  3094.  Presumptions. — The  presumption  is  generally  that  a  boy 
under  the  age  of  fourteen  years  cannot  commit  the  crime  of  rape,  but 
this  may  be  rebutted. ^^  A  child  under  ten  years  of  age  is  conclusively 
incapable  of  giving  her  consent,""  and  it  is  generally  the  rule  that  a 


^=  State  V.  Ward,  73  Iowa  532,  35 
N.  W.  617;  Turner  v.  People,  33 
Mich.  363;  Huston  v.  People,  121  111. 
497,  13  N.  E.  538;  Bass  v.  State,  16 
Tex.  App.  62;  Ransbottom  v.  State, 
144   Ind.  250,  43  N.  E.  218. 

"State  v.  Ruth,  21  Kans.  583; 
State  V.  Ward,  73  Iowa  532,  35  N.  W. 
617. 

"Gordon  v.  State,  93  Ga.  531,  21 
S.  E.  54,  44  Am.  St.  189;  Williams 
V.  State,  14  Ohio  222,  45  Am.  Dec. 
536;  Hiltabiddle  v.  State,  35  Ohio 
St.  52,  35  Am.  R.  592. 

'=  Anderson  v.  State,  41  Wis.  430; 
Brown  v.  State,  76  Ga.  623;  Austine 
v.  People,  51  111.  236;  People  v.  Mc- 
Whorter,  93  Mich.  641,  53  N.  W.  780. 

"  Commonwealth  v.  Allen,  135  Pa. 
St.  483,  19  Atl.  957,  26  W'kly  Notes 
Gas.  285. 

"State  v.  Houx,  109  Mo.  654,  19 
S.  W.  35,  32  Am.  St.  686;  Lawrence 
V.  State,  35  Tex.  Cr.  App.  114,  32  S. 


W.  530;  but  see,  Nicholas  v.  State, 
23  Tex.  App.  317,  5  S.  W.  239. 

"State  v.  Beabout,  100  Iowa  155, 
69  N.  W.  429;  Pollard  v.  State,  2 
Iowa  567;  Strang  v.  People,  24  Mich. 
1;  People  v.  Page,  162  N.  Y.  272,. 
56  N.  E.  750;  State  v.  Taylor,  57  S. 
Car.  483,  35  S.  E.  729,  76  Am.  St. 
575;  Jenkins  v.  State,  1  Tex.  App. 
346. 

'^  Heilman  v.  Commonwealth,  84 
Ky.  457,  1  S.  W.  731,  4  Am.  St.  207; 
Williams  v.  State,  14  Ohio  222,  45 
Am.  R.  536;  People  v.  Randolph,  2 
Park  Cr.  Gas.  174;  Wagoner  v. 
State,  5  Lea  (Tenn.)  352,  40  Am.  R. 
36.  If  over  fourteen  capacity,  it  is 
said,  is  presumed.  State  v.  Handy, 
4  Harr.  (Del.)  566;  see  generally, 
42  L.  R.  A.  589. 

="  State  V.  Smith,  9  Houst.  (Del.) 
588,  33  Atl.  441;  People  v.  McDon- 
ald, 9  Mich.  150;  Commonwealth  v. 
Sugland,  4  Gray   (Mass.)   7;    Fizell 


409 


AGE   OF    PROSECUTRIX. 


[§    3095. 


girl  between  the  ages  of  ten  and  twelve  can  only  give  consent  when 
it  is  sliown  that  she  is  capable  of  so  doing,^^  but  it  is  held  that  such 
child's  inconsistent  statements  and  acts  of  indecency  and  immorality 
with  others  may  be  inquired  into  in  a  proper  case  upon  her  cross- 
examination. *- 

§  3095.  Age  of  prosecutrix. — A  female  child  under  the  statutory 
age  is  conclusively  presumed  to  be  incapable  of  consenting  to  sexual 
intercourse,  or,  in  other  words,  her  consent  is  no  defense,  but  it  has 
been  held  that  evidence  is  admissible  to  show  that  she  understood  the 
nature  of  the  act/^  and  that  her  bad  reputation  for  chastity  may  be 
shown  as  affecting  her  credibility.^*  The  age  of  the  prosecutrix  may 
be  proved  by  her  own  testimony,-'^  by  that  of  her  parents,  or  others 
who  know,^"  and,  in  a  proper  case,  by  family  tradition  and  pedigree,^' 
or  by  records  and  documents.^*     Opinions  of  medical  men  have  also 


v.  State,  25  Wis.  364;  O'Meara  v. 
State,  17  Ohio  St.  515;  State  v.  Sul- 
livan, 68  Vt.  540,  35  Atl.  479.  Twelve 
years, — Murphy  v.  State,  120  Ind. 
115,  22  N.  E.  106. 

"State  V.  Houx,  109  Mo.  654,  19 
S.  W.  35,  32  Am.  St.  686. 

=^  Bessette  v.  State,  101  Ind.  85; 
State  v.  Duffey,  128  Mo.  549,  31  S. 
W.  98.  Not  ordinarily,  however,  up- 
on the  question  of  consent,  but 
rather  as  affecting  her  credibility, 
or  the  like. 

-'O'Meara  v.  State,  17  Ohio  St. 
515. 

^*  State  v.  Duffey,  128  Mo.  549,  31 
S.  W.  98;  People  v.  Johnson,  106 
Cal.  289,  39  Pac.  622;  see.  People  v. 
Glover,  71  Mich.  303,  38  N.  W.  874; 
People  V.  Abbott,  97  Mich.  484,  56 
N.  W.  862,  37  Am.  St.  360. 

'^Weed  V.  State,  55  Ala.  13;  Peo- 
ple V.  Ratz,  115  Cal.  132,  46  Pac. 
915;  Commonwealth  v.  Phillips,  162 
Mass.  504,  39  N.  E.  109;  People  v. 
Bernor,  115  Mich.  692.  74  N.  W. 
184;  State  v.  Bowser,  21  Mont.  133, 
53  Pac.  179;  Johnson  v.  State,  42 
Tex.    Cr.   App.    298,    59    S.   W.    398; 


Dodge  V.  State,  100  Wis.  294,  75  N. 
W.   954. 

='  People  V.  Bernor,  115  Mich.  692, 
74  N.  W.  184;  George  v.  State,  61 
Neb.  669,  85  N.  W.  840;  Lawrence  v. 
State,  35  Tex.  Cr.  App.  114,  32  S. 
W.  530,  539;  Reg.  v.  Nicholls,  10  Cox 
Cr.  Cas.  476. 

=^Reg.  V.  Hayes,  2  Cox  Cr.  Cas. 
226;  Bain  v.  State,  61  Ala.  75.  But 
not  by  the  girl's  own  declarations  to 
third  persons.  State  v.  Deputy,  3 
Pen.  (Del.)  19;  see  generally,  Vol.  I, 
§  377. 

"  See,  People  v.  Ratz,  115  Cal.  132, 
46  Pac.  915  (family  bible;)  Com- 
monwealth V.  Mollis,  170  Mass.  433, 
49  N.  E.  632  (birth  certificate); 
People  V.  Vann,  129  Cal.  118,  61  Pac. 
776  (physician's  record) ;  Smith  v. 
State,  (Tex.  Cr.  App.)  73  S.  W.  401 
(same) ;  Reg.  v.  Weaver,  12  Cox 
Cr.  Cas.  527  (copy  of  register  of 
births) ;  Rex.  v.  Wedge,  5  Car.  &  P. 
298;  but  see.  People  v.  Mayne,  118 
Cal.  516,  50  Pac.  654,  62  Am.  St. 
256,  and  compare,  People  v.  Shep- 
pard,  44  Hun  (N.  Y.)  565;  People 
V.  Flaherty.  162  N.  Y.  532,  57  N.  E. 
73. 


§  3096.] 


RAPE. 


410 


been  held  admissible  in  some  instances,^^  and  it  has  been  held  that 
the  appearance  of  the  girl  may  be  taken  into  consideration.^o  -^^^^  jj^  ^ 
recent  case  in  which  the  age  of  prosecutrix  was  in  issue,  a  school- 
teacher testified  that  the  prosecutrix  had  gone  to  school  to  him,  and 
that  he  had  placed  her  name  and  age  on  the  register ;  that  he  usually 
obtained  information  as  to  the  age  of  pupils  by  asking  them,  their 
older  brothers  or  sisters,  or  their  parents,  but  did  not  know  how  he  had 
learned  the  age  of  prosecutrix,  although  he  got  it  from  some  member 
of  the  family,  and  it  was  held  that  the  register  was  not  admissible 
to  show  the  age  of  prosecutrix.^^ 

§  3096.  Consent. — As  already  intimated,  where  the  woman  is  over 
the  statutory  age,  so  that  there  is  no  rape  if  she  consents  to  the  act, 
it  must  appear  that  she  did  not  consent.  Proof  of  consent  of  the 
female,  over  the  age  named  in  the  statute,  is  a  defence  to  the  action, 
no  matter  how  reluctantly  granted.^^     Where  consent  in  a  qualified 


-^See,  State  v.  Smith,  61  N.  Car. 
302;  see  also,  Vol.  I,  §§  676,  677,  as 
to  opinion  evidence  of  age. 

=°  Commonwealth  v.  Phillips,  162 
Mass.  504,  39  N.  E.  109;  People  v. 
Dickerson,  58  App.  Div.  (N.  Y.)  202, 
68  N.  Y.  S.  715;  State  v.  McNair, 
93  N.  Car.  628;  Vol.  I,  §  166.  That 
evidence  of  the  resemblance  of  the 
child  to  the  alleged  father  is  admis- 
sible and  that  the  child  may  be 
shown  for  the  purpose  of  compari- 
son in  cases  of  rape,  bastardy  and 
the  like,  at  least  when  it  is  suffi- 
ciently mature,  see,  State  v.  Dan- 
forth,  (N.  H.)  60  Atl.  839  (review- 
ing many  authorities);  Finnegan  v. 
Dugan,  14  Allen  (Mass.)  197;  Scott 
V.  Donovan,  153  Mass.  378,  26  N.  E. 
871;  Farrell  v.  Weitz,  160  Mass.  288, 
35  N.  E.  783;  Gaunt  v.  State,  50  N. 
J.  L.  490,  14  Atl.  600;  Jones  v. 
Jones,  45  Md.  144;  State  v.  Wood- 
ruff, 67  N.  Car.  89;  State  v.  Horton, 
100  N.  Car.  443,  6  S.  E.  238,  6  Am. 
St.  614;  Wright  v.  Hicks,  15  Ga. 
160,  60  Am.  Dec.  687,  695;  Paulk 
V.  State,  52  Ala.  427;  Kelly  v.  State, 


133  Ala.  195,  32  So.  56,  91  Am.  St. 
25;  Crow  v.  Jordan,  49  Ohio  St.  655, 

32  N.  E.  750;  People  v.  Wing,  115 
Mich.  698,  701,  702,  74  N.  W.  179; 
Jessup's  Estate,  81  Cal.  408,  21  Pac. 
976,  22  Pac.  742,  1028,  6  L.  R.  A. 
594;  Marr  v.  Marr,  3  U.  C.  C.  P.  36; 
52  L.  R.  A.  500,  note,  and  84  Am.  St. 
350,  note;  but  compare.  Risk  v. 
State,  19   Ind.   152;    Reitz  v.   State, 

33  Ind.  187;  La  Matt  v.  State,  128 
Ini.  123,  27  N.  E.  346;  State  v.  Har- 
vey, 112  Iowa  416,  84  N.  W.  535, 
52  L.  R.  A.  500,  84  Am.  St.  350; 
Clark  V.  Bradstreet,  80  Me.  454,  15 
Atl.  56,  6  Am.  St.  221;  Hanawalt  v. 
State,  64  Wis.  84,  24  N.  W.  489,  54 
Am.  R.  588;  State  v.  Neel,  23  Utah 
541,  65  Pac.  494. 

^^  Simpson  v.  State,  (Tex.  Cr. 
App.)  81  S.  W.  320. 

"Whittaker  v.  State,  50  Wis.  518, 
7  N.  W.  431,  36  Am.  R.  856;  Brown 
v.  People,  36  Mich.  203;  State  v. 
Burgdorf,  53  Mo.  65;  Huber  v.  State, 
126  Ind.  185,  25  N.  E.  904;  State  v. 
Hammond,  77  Mo.  157.  So  held, 
even  though  she  refused  at  first,  if 


411  CONSENT.  [§   309G. 

sense  is  obtained  through  fear,  and  there  is  no  actual  resistance,  the 
prosecution  must  show  generally  that  the  fear  was  so  complete  as  to 
preclude  all  resistance.^^  The  age  and  relations  of  the  parties  may  be 
considered  and  also  whether  the  female  was  ignorant  of  the  nature 
of  the  act.^*  It  has  also  been  held  that  the  statements  of  the  prose- 
cutrix concerning  her  consent  to  the  intercourse  and  as  to  the  force 
used,  are  admissible.^"  There  can  be  no  consent  where  the  woman  was 
asleep,  unconscious  or  completely  insensible  from  intoxication,  and 
evidence  of  these  facts  is  admissible  upon  the  question  of  consent,^*^ 
Lack  of  consent  is  also  proved  where  the  state  shows  the  woman  to  be 
an  idiot  or  of  such  a  weak  mind  as  to  prevent  assent,^^  and  of  course, 
girls  under  the  statutory  age  cannot  give  consent.^^  Wliere  so  called 
consent  is  obtained  from  the  woman  under  the  misrepresentation  that 
the  intercourse  is  a  part  of  her  medical  treatment  or  surgical  operation, 
such  facts  may  be  shown  to  prove  that  the  intercourse  was  obtained 
without  a  valid  consent.^®  Proper  evidence  tending  to  show  the  want 
of  chastity  of  prosecutrix  may  be  introduced  and  considered  in  deter- 
mining the  question  of  consent.'*"  But  this,  and  other  e\ddence  bear- 
ing upon  the  subject,  will  be  considered  in  the  sections  relating  to 
character  and  reputation  and  to  circumstantial'  evidence. 

she    consented    before    penetration.  ''  Commonwealth    v.    Burke,    105 

Reg.  v.  Hallett,  9  Car.  &  P.  748,  38  Mass.  376,  7  Am.  R.  531;  Osgood  v. 

E.  C.  L.  433;  Whittaker  v.  State,  50  State,   64  Wis.   472,   25   N.   W.   529; 

Wis.   518,  7   N.  W.   431,   36   Am.  R.  State  v.  Shields,  45  Conn.  256. 

856.     But  in  such  cases  there  may  "  State  v.  Atherton,  50  Iowa  189, 

often  be  a  conviction  of  assault  with  32  Am.  R.  134. 

intent  to  rape.  "*  People  v.  Johnson,  106  Cal.  289, 

^'^  People  v.   Flynn,   96   Mich.   276,  39   Pac.   622;    State  v.   Eberline,   47 

55   N.   W.    834;    State   v.   Ward,    73  Kans.    455,   27   Pac.    839;    People   v. 

Iowa  532,  35  N.  W.  617;  Don  Moran  Glover,  71  Mich.  303,  38  N.  W.  874. 

v.  People,  25  Mich.  356,  12  Am.  R.  ="  Eberhart  v.  State,  134  Ind.  651, 

283;    State  v.  Ruth,   21   Kans.   583;  34  N.  E.  637;   Pomeroy  v.  State,  94 

Ransbottom  v.   State,   144   Ind.  250,  Ind.  96,  48  Am.  R.  146;  Reg.  v.  Flat- 

43  N.  E.   218;    Felton  v.   State,  139  tery,    13    Cox    Cr.    Cas.    388;     Don 

Ind.    531,    39    N.    E.    228;    Sharp   v.  Moran  v.   People,   25   Mich.    356,   12 

State,  15  Tex.  App.  171.  Am.  R.  283;    but  compare.  State  v. 

^*  Hawkins  v.  State,  136  Ind.  630,  Murphy,  6  Ala.  765,  41  Am.  Dec.  79; 

36  N.  E.  419;   Ransbottom  v.  State,  Reg.  v.  Clarke,  6  Cox  Cr.  Cas.  412. 

144  Ind.  250,  43  N.  E.  218;  People  v.  ^"Carney   v.    State,    118    Ind.    525, 

Burwell,  106  Mich.  27,  63  N.  W.  986;  21  N.   E.  48;    McQuirk  v.   State,   84 

People  V.  Lenon,  79  Cal.  625,  21  Pac.  Ala.  435,  4  So.  775,  5  Am.  St.  381; 

967.  State    v.    Fitzsimon,    18    R.    I.    236, 

=»  People   v.   Flynn,   96   Mich.    276,  27  Atl.  446,  49  Am.  St.  766;   Wilson 

55  N.  W.  834.  V.  State,  17  Tex.  App.  525. 


§§  3097,  3098.]  rape.  412 

§  3097.  Resistance. — The  amount  of  resistance  required  depends- 
upon  the  relative  strength  of  the  parties  and  upon  the  circumstances- 
of  each  particular  case.*^  No  invariable  rule  can  be  laid  down.  It 
is  generally  said,  however,  that  the  woman  must  exercise  actual  op- 
position and  the  utmost  resistance  of  which  she  is  capable,  or  at ' 
least  she  must  make  such  resistance  as  she  is  reasonably  called  upon 
to  exercise  under  the  circumstances.*^  Eesistance  may  be  sufficiently 
proved,  however,  when  it  is  shown  that  the  act  was  accomplished  by 
means  of  threats  and  fear  of  bodily  injury,*^  which  overcome  the 
female.  ''The  importance  of  resistance,"  it  is  said,  "is  simply  to  show 
two  elements  of  the  crime;  carnal  knowledge  by  force  by  one  of  the 
parties  and  non-consent  by  the  other."**  And,  as  already  shown,  when 
the  woman  is  an  idiot,  overcome  by  fear  and  threats,  under  the  age  of 
consent  or  the  like,  the  rule  requiring  actual  physical  resistance  does 
not  apply. 

§  3098.  Res  gestae. — Matters  constituting  part  of  the  res  gestae 
are  admissible  in  cases  of  rape  as  well  as  in  other  cases.  Thus,  evidence 
of  the  conduct  and  language  of  the  parties  at  the  time  of  and  character- 
izing the  act  is  admissible.*^  So,  the  struggles  and  outcries  of  the 
woman  are  competent  to  be  shown.*®    So,  the  condition  of  her  person 

"Felton  V.  State,  139  Ind.  531,  39  "Ransbottom    v.    State,    144    Ind. 

N.   E.    228;    Hawkins   v.    State,    136  250,  43  N.  E.  218;    Felton  v.   State, 

Ind.  630,  36  N.  E.  419;  Anderson  v.  139   Ind.  531,  39  N.  E.  228;    People 

State,    104    Ind.    467,    4    N.    E.    63;  v.  Lenon,  79  Cal.  625,  21  Pac.  967. 

People   V.    Crego,    70   Mich.   319,   38  "  State  v.  Shields,  45  Conn.  256. 

N.  W.  281;    State  v.  Knapp,   45   N.  ••=  Castillo    v.    State,    31    Tex.    Cr. 

H.  148;  Bean  v.  People,  124  111.  576,  App.  145,  19  S.  W.  892,  37  Am.  St. 

16  N.  E.  956;  Commonwealth  v.  Mc-  794;    1    McClain's   Cr.   Law,    §   455; 

Donald,  110  Mass.  405;   Ransbottom  2  Bishop  Cr.  Proc,  §  936;   see  also, 

V.  State,  144  Ind.  250,  43  N.  E.  218;  McMath  v.  State,  55  Ga.  303;  People 

Brown    v.    Commonwealth,    82    Va.  v.    Flynn,   96    Mich.    276,    55   N.   W. 

653.  834;  State  v.  Shettleworth,  18  Minn. 

^^Huber  v.  State,  126  Ind.  185,  25  208;  People  v.  Colletta,  65  App.  Div. 

N.   E.   904;    Anderson  v.   State,    104  (N.  Y.)  570,  72  N.  Y.  S.  903. 

Ind.  467,  4  N.  E.  63;  Oleson  v.  State,  *"  Such  evidence  might,  of  course, 

11  Neb.  276,  9  N.  W.  38,  38  Am.  R.  be    original    evidence.     But    it    has 

366;    People   v.    Dohring,    59    N.    Y.  been  held  error  to  permit  a  witness 

374,  17  Am.  R.  349;  People  v.  Mayes,  to    testify    that    he    heard    cries   or 

66  Cal.  597,  6  Pac.  691,  56  Am.  R.  noises  indicating  distress,  when  he 

126;  see,  36  Am.  R.  860,  note;  Mills  could  not  state  who  made  the  noise 

V.   United   States,  164  U.  S.  644,  17  nor   what   it  was   about.     Baker   v. 

Sup.  Ct.  210;    80  Am.  Dec.  364-367,  State,  82  Miss.  84,  33  So.  716.    That 

note.  no  outcry  was  made,  although  prose- 


413 


RES    GESTAE — COMPLAINT. 


[§    3099. 


and  clothing  and  the  like  at  the  time  and  place  of  the  alleged  rape  may 
be  shown.*^  And  her  spontaneous  exclamations  and  complaints  may 
also  be  so  connected  with  the  principal  transaction  as  to  be  part  of  the 
res  gestae.*^  Indeed,  some  authorities  admit  details  of  her  complaint 
as  part  of  the  res  gestae,  although  as  shown  in  another  section,  her 
complaint  is  not  ordinarily  treated  as  part  of  the  res  gestae,  but  is  ad- 
mitted on  another  principle,  and  the  details  or  particulars  are  ex- 
'Cluded  in  the  first  instance. 

§  3099.  Complaint. — As  elsewhere  pointed  out  the  use  of  the 
woman's  complaint  in  evidence  is  apparently  a  relic  of  the  old  law  of 
hue  and  cry.*''  According  to  the  decided  weight  of  authority  in  this 
-country,  however,  while  the  fact  that  the  prosecutrix  made  complaint 
is  admissible,  the  particulars  of  the  complaint  cannot  be  shown  by  her 
in  the  first  instance  before  any  attempt  has  been  made  to  impeach 
her.^°    This  is  true  unless  the  complaint  is  so  recent,  so  spontaneous. 


cutrix  knew  persons  were  near  has 
been  held  admissible.  Sutton  v. 
People,  145  111.  279,  34  N.  B.  420; 
State  V.  Patrick,  1C7  Mo.  147,  17 
S.  W.  666;  see  also,  Huber  v.  State, 
126  Ind.  185,  25  N.  E.  904. 

"  And  in  some  cases  evidence  of 
such  matters  at  a  time  after  the 
alleged  act  is  treated  as  admissible 
as  part  of  the  res  gestae.  See  gen- 
erally. Poison  V.  State,  137  Ind.  519, 
35  N.  E.  907;  State  v.  Baker,  106 
Iowa  99,  76  N.  W.  509;  State  v. 
Hutchinson,  95  Iowa  566,  64  N.  W. 
610;  People  v.  Baldwin,  117  Cal.  244, 
49  Pac.  186;  State  v.  Murphy,  118 
Mo.  7,  25  S.  W.  95;  State  v.  San- 
ford.  124  Mo.  484,  27  S.  W.  1099; 
Hornbeck  v.  State,  35  Ohio  St.  277, 
35  Am.  St.  608;  Proper  v.  State,  85 
Wis.  615,  55  N.  W.  1035;  State  v. 
Sargent,  32  Ore.  110,  49  Pac.  889; 
State  V.  Robertson,  38  La.  Ann.  618, 
58  Am.  R.  201;  Brown  v.  State,  72 
Miss.  997,  17  So.  298;  Rex  v.  Clarke, 
2  Stark.  241,  3  E.  C.  L.  393;  State  v. 
Shettleworth,  18  Minn.  208;  Peffer- 
ling  V.  State,  40  Tex.  486. 


*'  McMurrin  v.  Rigby,  80  Iowa  322, 
45  N.  W.  877;  State  v.  Jerome,  82 
Iowa  749,  48  N.  W.  722;  Castillo  v. 
State,  31  Tex.  Cr.  App.  145,  19  S. 
W.  892,  37  Am.  St.  794;  State  v. 
Neel,  21  Utah  151,  60  Pac.  510; 
State  v.  Fitzsimon,  18  R.  I.  236,  27 
Atl.  446;  some  of  these  cases,  per- 
haps, go  a  little  too  far  and  are  not 
in  line  with  the  weight  of  authority. 
See  also,  Kenney  v.  State,  (Tex.  Cr. 
App.)  79  S.  W.  817,  65  L.  R.  A.  316, 
and  note. 

*»See,  Vol.  I,  §  566;  Bract,  f.  147; 
1  Hale  P.  C.  634;  2  Hale  P.  C.  279, 
284;  Hannon  v.  State,  70  Wis.  448, 
36  N.  W.  1,  3. 

^"  Bray  v.  State,  131  Ala.  46,  31  So. 
107;  Barnett  v.  State,  83  Ala.  40, 
3  So.  612;  Williams  v.  State,  66  Ark. 
264,  50  S.  W.  517;  Hannon  v.  State, 
70  Wis.  448,  451,  36  N.  W.  1;  Lee 
V.  State,  74  Wis.  45,  41  N.  W.  960; 
State  V.  Langford,  45  La.  Ann.  1177, 
1179,  14  So.  181;  Lowe  v.  State,  97 
Ga.  792,  25  S.  E.  676;  Baccio  v. 
People,  41  N.  Y.  265,  271;  State  v. 
Harness,     (Idaho)     76     Pac.     788; 


§  9099.] 


RAPE. 


414 


and  so  connected  with  the  principal  fact  as  to  constitute  part  of  the 
res  gestae.  But  a  few  authorities  hold  that  the  particulars  of  the  com- 
plaint are  admissible  as  res  gestae  declarations  even  when  they  would 
hardly  be  so  considered  in  any  other  class  of  cases. ^^  And  on  cross- 
examination  to  impeach  her  the  details  may  be  brought  out,  or,  after 
the  credibility  of  her  testimony  on  the  subject  has  been  attacked,  she 
may  show  the  details  of  her  complaint  by  herself  or  the  witness  to 
whom  she  made  such  complaint."  The  theory  on  which  the  fact  that 
she  made  complaint  is  admitted  seems  to  be  that  it  would  be  a  natural 
thino-  to  do  and  that  if  no  evidence  were  given  that  she  did  complain 
the  jury  might  well  infer  that  she  made  no  complaint  and  that  no 
such  aei  as  that  charged  was  committed  by  force  and  without  her 


Thompson  v.  State,  38  Ind.  39; 
Cross  V.  State,  132  Ind.  65,  31  N. 
E.  473;  Ellis  v.  State,  25  Fla.  702, 
708,  6  So.  768;  State  v.  Shettle- 
worth,  18  Minn.  208,  212;  People  v. 
Stewart,  97  Cal.  238,  32  Pac.  8; 
People  V.  Scalamiero,  143  Cal.  343, 
76  Pac.  1098;  Oleson  v.  State,  11 
Neb.  276,  38  Am.  R.  366;  State  v. 
Campbell,  20  Nev.  122,  17  Pac.  620; 
State  V.  Mitchell,  68  Iowa  116,  119, 
26  N.  W.  44;  State  v.  Richards,  33 
Iowa  420;  State  v.  Clark,  69  Iowa 
294,  28  N.  W.  606;  Parker  v.  State, 
67  Md.  329,  10  Atl.  219;  Stevens  v. 
People,  158  111.  Ill,  41  N.  E.  856; 
Pefferling  v.  State,  40  Tex.  486; 
People  v.  Tierney,  67  Cal.  54,  7  Pac. 
37;  People  v.  Mayes,  66  Cal.  597,  6 
Pac.  691;  State  v.  Daugherty,  63 
Kans.  473,  65  Pac.  695;  People  v. 
Flaherty,  162  N.  Y.  532,  57  N.  E.  73; 
State  V.  Sargent,  32  Ore.  110,  49 
Pac.  889;  State  v.  Neel,  21  Utah  151, 
60  Pac.  510;  see  also.  Vol.  I,  §  566. 
"  State  v.  Kinney,  44  Conn.  153, 
26  Am.  R.  436;  McCombs  v.  State, 
8  Ohio  St.  643;  Laughlin  v.  State, 
18  Ohio  99,  51  Am.  Dec.  444;  Bens- 
tine  V.  State,  2  Lea  (Tenn.)  169, 
31  Am.  R.  593;  see  also,  Hornbeck 
V.  State,  35  Ohio  St.  277,  35  Am.  R. 
608;  Reg.  v.  Lillyman,  L.  R.,  (1896) 


2  Q.  B.  167;  Reg.  v.  Riendeau,  9 
Quebec  Q.  B.  147.  And  in  Michigan, 
while  it  is  held  that  the  general  rule 
is  that  particulars  cannot  be  given, 
yet  it  is  held  that  they  may  be  in 
exceptional  cases,  as  where  the  girl 
is  of  tender  years.  People  v.  Gage, 
62  Mich.  271,  28  N.  W.  835,  4  Am. 
St.  854;  People  v.  Glover,  71  Mich. 
303,  38  N.  W.  874;  see  also.  Vol.  I, 
§  566. 

^-  State  V.  Freeman,  100  N.  Car. 
429,  433,  5  S.  E.  921;  State  v.  Brown, 
125  N.  Car.  606,  34  S.  E.  105;  Wood 
V.  State,  46  Neb.  58,  64  N.  W.  355; 
State  V.  Clark,  69  Iowa  294,  296, 
28  N.  W.  606;  Barnett  v.  State,  83 
Ala.  40,  44,  3  So.  612;  Griffin  v. 
State,  76  Ala.  29,  32;  Pleasant  V- 
State,  15  Ark.  624;  Thompson  v. 
State,  38  Ind.  39;  Parker  v.  State, 
67  Md.  329,  331,  10  Atl.  219;  State 
V.  Neel,  21  Utah  151,  60  Pac.  510. 
But  it  would  seem  that  the  woman 
must  be  a  witness.  See,  Thompson 
V.  State,  38  Ind.  39;  State  v.  Meyers, 
46  Neb.  152,  64  N.  W.  697,  37  L.  R. 
A.  423;  Hornbeck  v.  State,  35  Ohio 
St.  277,  35  Am.  St.  608;  Reg.  v.  Gut- 
tridges,  9  Car.  &  P.  471,  38  E.  C.  L. 
279;  Commonwealth  v.  Cleary,  172 
Mass.  175,  51  N.  E.  746;  State  V- 
Wolf,  118  Iowa  564,  92  N.  W.  673. 


415 


COMPLAINT rARTICULARS. 


[§    3100. 


consent,  hor  silence  being  inconsistent  with  her  charge  and  present 
testimony.^^  So,  after  she  has  been  impeached,  or  her  credibility  at- 
tacked, the  details  of  her  complaint  are  admitted  on  the  principle  of 
corroboration  rehabilitating  her  by  evidence  of  similar  statements. 
The  fact  that  some  time  elapsed  before  she  made  complaint  generally 
goes  to  her  credibility  and  the  weight  of  the  testimony  rather  than 
to  its  competency,"  and  the  delay  may  be  explained  by  her,  as  by 
showing  that  it  was  caused  by  the  threats  of  the  prisoner,  lack  of  op- 
portunity, or  the  like.^^ 

§  3100.  Complaint — ^Particulars. — There  is  some  difference  of 
opinion  as  to  what  are  particulars  within  the  rule  excluding  evidence 
of  the  particulars  of  the  complaint  in  the  first  instance.  In  some  cases 
the  name  of  the  assailant  or  alleged  ravisher  has  not  been  considered 
a  particular  of  the  complaint  and  has  been  permitted  to  be  stated.^** 
But,  as  a  general  rule  supported  by  the  weight  of  authority,  it  is  ex- 
cluded."    So,  her  statements  as  to  violence  used,  the  injuries  to  her 


"  See,  State  v.  Neel,  21  Utah  151, 
60  Pac.  510;  State  v.  De  Wolf,  8 
Conn.  93,  99;  Baccio  v.  People,  41 
N.  Y.  265,  268.  Or  on  the  principle 
of  corroboration.  State  v.  Peterson, 
110  Iowa  647,  82  N.  W.  329;  Mc- 
Clain  Cr.  Law,  §  455. 

^*  Trimble  v.  Territory,  (Ariz.)  71 
Pac.  932;  State  v.  Peterson,  110 
Iowa  647,  82  N.  W.  329;  State  v. 
Bebb,  (Iowa)  96  N.  W.  714;  State 
v.  Mulkern,  85  Me.  106,  26  Atl. 
1017;  Legore  v.  State,  87  Md.  735, 
41  Atl.  60;  State  v.  Marcks,  140  Mo. 
656,  41  S.  W.  973,  43  S.  W.  1095; 
State  V.  Peres,  27  Mont.  358,  71  Pac. 
162;  Higgins  v.  People,  58  N.  Y.  377; 
State  v.  Sudduth,  52  S.  Car.  488,  30 
S.  E.  408;  Robertson  v.  State,  (Tex. 
Cr.  App.)  49  S.  W.  398;  State  v. 
Niles,  47  Vt.  82;  but  compare. 
People  V.  Lambert,  120  Cal.  170,  52 
Pac.  307;  People  v.  Duncan.  104 
Mich.  460,  62  N.  W.  556;  Dunn  v. 
State,  45  Ohio  St.  249,  12  N.  E.  826; 
State  V.  Patrick,  107  Mo.  147,  17  S. 
W.  666. 


^'^  State  v.  Knapp,  45  N.  H.  148, 
155;  State  v.  Shettleworth,  18  Minn. 
208;  State  v.  Reid,  39  Minn.  277, 
39  N.  W.  796;  see  also.  State  v. 
Peterson,  110  Iowa  647,  82  N.  W. 
329;  State  v.  Wilkins,  66  Vt.  1,  28 
Atl.  323;  Rex  v.  Rearden,  4  F.  &  F. 
76;  People  v.  Glover,  71  Mich.  303, 
38  N.  W.  874;  Poison  v.  State,  137 
Ind.  519,  35  N.  E.  907;  State  v. 
Byrne,  47  Conn.  465;  State  v.  Baker, 
136  Mo.  74,  37  S.  W.  810. 

5"  See,  Ellis  v.  State,  25  Fla.  702, 
6  So.  768;  State  v.  Watson,  81  Iowa 
380,  46  N.  W.  868;  State  v.  Hutchin- 
son, 95  Iowa  566,  64  N.  W.  610; 
Harmon  v.  Territory,  9  Okla.  313, 
60  Pac.  115. 

"Bray  v.  State,  131  Ala.  46,  31 
So.  107;  Thompson  v.  State,  38  Ind. 
39;  Stevens  v.  People,  158  111.  Ill, 
41  N.  E.  856;  State  v.  Daugherty, 
63  Kans.  473,  65  Pac.  695;  State  v. 
Robertson,  38  La.  Ann.  618,  58  Am. 
R.  201;  People  v.  demons,  37  Hun. 
(N.  Y.)  580;  Johnson  v.  State,  21 
Tex.  App.  368,  17  S.  W.  252;    State 


§  3101.] 


RAPE. 


416 


person,  and  the  like,  have  been  excluded. ^«  But  it  is  held  that  the 
time  and  place  of  the  complaint,  the  person  to  whom  it  was  made, 
and  the  like,  may  be  shown.^^ 

§  3101.  Character  and  reputation. — The  character  of  the  prose- 
cutrix for  chastity  may  be  said  to  be  in  issue  or  relevant  to  the  issue 
in  prosecution  for  rape  as  bearing  upon  the  question  of  consent,^" 
where  the  prosecution  is  not  under  a  statute  for  carnally  knowing 
a  child  under  the  age  of  consent."    There  is  some  conflict  among  the 


V.  Niles,  47  Vt.  82;  Brogy  v.  Com- 
monwealth, 10  Gratt.  (Va.)  722;  see 
also,  Stephen  v.  State,  11  Ga.  225; 
Commonwealth  v.  Phillips,  162  Mass. 
504,  39  N.  E.  109;  Reg.  v.  Osborne, 
Car.  &  M.  622,  41  E.  C.  L.  338;  Reg. 
T.  Nicholas,  2  Car.  &  Kir.  246,  61 
E.  C.  L.  246. 

"'Reddick  v.  State,  35  Tex.  Cr. 
'App.  463,  34  S.  W.  274,  60  Am.  St. 
56;  Scott  v.  State,  48  Ala.  420; 
State  V.  Carroll,  67  Vt.  477,  32  Atl. 
235;  Lowe  v.  State,  97  Ga.  792,  25 
S.  E.  676;  but  see.  State  v.  Baker, 
106  Iowa  99,  76  N.  W.  509. 

■^^  State  v.  Neel,  21  Utah  151,  60 
Pac.  510;  State  v.  Mitchell,  68  Iowa 
116,  26  N.  W.  44;  Barnes  v.  State, 
88  Ala.  204,  7  So.  38,  16  Am.  St.  48; 
Harmon  v.  Territory,  9  Okla.  313, 
60  Pac.  115.  In  a  recent  case,  which 
was  a  prosecution  for  an  assault 
with  intent  to  commit  rape  by  the 
defendant  on  a  certain  evening  at 
his  barber  shop,  a  witness  testified 
that  she  accompanied  the  mother  of 
the  prosecutrix  to  the  barber  shop 
shortly  after  the  offense,  and  that 
the  mother  asked  the  defendant 
what  he  had  been  doing  with  prose- 
cutrix, to  which  he  replied  that  she 
had  not  been  in  his  shop;  and  her 
father  testified  that  when  he  reached 
the  shop,  shortly  afterwards,  the  de- 
fendant admitted  to  him  that  the 
child  had  been  there,  but  said  he 
had  done  nothing  to  her,  and  it  was 


held  that  the  admission  of  such  tes- 
timony was  not  objectionable  on  the 
theory  that  it  brought  before  the 
jury  part  of  the  details  of  a  com- 
plaint made  by  the  prosecutrix. 
People  V.  Scalamiero,  143  Cal.  343, 
76  Pac.  1098. 

»°  Seals  V.  State,  114  Ga.  518,  40 
S.  E.  731;  Carney  v.  State,  118  Ind. 
525,  21  N.  E.  48;  State  v.  McDon- 
ough,  104  Iowa  6,  70  N.  W.  357; 
Neace  v.  Commonwealth,  23  Ky.  li. 
R.  125,  62  S.  W.  733;  State  v.  Reed, 
41  La.  Ann.  581,  7  So.  132;  Common- 
wealth V.  Kendall,  113  Mass.  210,  18 
Am.  R.  469;  Woodruff  v.  State, 
(Neb.)  101  N.  W.  1114;  State  v. 
Campbell,  20  Nev.  122,  17  Pac.  620; 
State  V.  Forshner,  43  N.  H.  89,  80 
Am.  Dec.  132;  Conkey  v.  People,  1 
Abb.  App.  Dec.  (N.  Y.)  418;  People 
V.  Abbot,  19  Wend.  (N.  Y.)  192; 
Woods  V.  People,  55  N.  Y.  515;  Mc- 
Dermott  v.  State,  13  Ohio  St.  332, 
82  Am.  Dec.  444;  see  also.  People  v. 
Johnson,  106  Cal.  289,  39  Pac.  622; 
State  V.  Ogden,  39  Ore.  195,  65  Pac. 
449;  Titus  v.  State,  7  Baxt.  (Tenn.) 
132;  Steinke  v.  State,  33  Tex.  Cr. 
App.  65,  24  S.  W.  909;  State  v.  Long, 
93  N.  Car.  542;  Reg.  v.  Clay,  5  Cox 
Cr.  Cas.  146;  Reg.  v.  Tissington,  1 
Cox  Cr.  Cas.  48;  80  Am.  Dec.  368, 
note. 

"Plunkett  V.  State.  (Ark.)  82  S. 
W.  845;  People  v.  Johnson,  106  Cal. 
289,  39  Pac.  622;    State  v.  Eberline, 


417 


CHARACTER    AXD    REPUTATION. 


[§    3101. 


authorities,  but  the  weight  of  authority  is  to  the  effect  that  it  is  the 
reputation  of  the  prosecutrix  for  unchastity  prior  to  the  alleged  rape 
that  is,  ordinarily,  to  be  shown  and  not  specific  acts  of  unchastity 
with  third  persons."  The  defendant  may,  however,  show  specific  acts 
of  unchastity  between  the  prosecutrix  and  himself  as  tending  to  show 
consent.*^^     But  where  the  girl  is  under  the  statutory  age  of  consent 


47  Kans.  155,  27  Pac.  839;  People  v. 
Harris,  103  Mich.  473,  61  N.  W.  871; 
People  V.  Abbott,  97  Mich.  484,  56 
N.  W.  862,  37  Am.  St.  360;  State  v. 
Duffey,  128  Mo.  549,  31  S.  W.  98; 
State  V.  Whitesell,  142  Mo.  467,  44 
S.  W.  332;  State  v.  Hilberg,  22  Utah 
27,  61  Pac.  215;  State  v.  Williamson, 
22  Utah  248,  62  Pac.  1022,  83  Am. 
St.  780. 

"Maxey  v.  State,  66  Ark.  523,  52 
S.  W.  2;  Pleasant  v.  State,  15  Ark. 
624,  648;  State  v.  Cassidy,  85  Iowa 
145,  52  N.  W.  1;  State  v.  Brown,  55 
Kans.  766,  42  Pac.  363;  Common- 
wealth V.  Harris,  131  Mass.  336; 
Commonwealth  v.  Kendall,  113 
Mass.  210;  State  v.  Fitzsimon,  18  R. 
I.  236,  27  Atl.  446;  O'Blenis  v.  State, 
47  N.  J.  L.  279;  State  v.  Knapp,  45  N. 
H.  148;  McCombs  v.  State,  8  Ohio 
St.  643;  Innis  v.  State,  42  Ga.  473, 
485;  Richie  v.  State,  58  Ind.  355; 
Richie  v.  State,  59  Ind.  121;  Ander- 
son V.  State,  104  Ind.  467,  4  N.  E. 
63;  People  v.  Abbott,  97  Mich.  484, 
486,  36  N.  W.  862,  37  Am.  St.  360; 
People  V.  McLean,  71  Mich.  309,  38 
N  W.  917;  State  v.  Patrick,  107  Mo. 
47,  17  S.  W.  666;  State  v.  Campbell, 
20  Nev.  122,  17  Pac.  620;  McQuirk 
V.  State,  84  Ala.  435,  4  So.  775; 
State  V.  Turner,  1  Houst.  Cr.  Cas. 
(Del.)  76;  Reg.  v.  Dean,  6  Cox  Cr. 
Cas.  23;  contra,  People  v.  Abbot,  19 
Wend.  (N.  Y.)  192;  Brennan  v.  Peo- 
ple, 7  Hun  (N.  Y.)  171;  Benstine 
V.  State,  2  Lea  (Tenn.)  169,  173; 
People  V.  Benson,  6  Cal.  221;  People 
V.  Knight,  (Cal.)  43  Pac.  6;  People 
V.  Shea,  125  Cal.  151,  57  Pac.  885; 
Vol.  4  Elliott  Ev. — 27 


State  V.  Murray,  63  N.  Car.  31;  see 
also,  Shirwin  v.  People,  69  111.  55; 
State  V.  Johnson,  28  Vt.  512;  see, 
as  to  the  effect  of  questioning  her 
upon  such  matters.  People  v.  Fla- 
herty, 79  Hun  (N.  Y.)  48,  29  N.  Y. 
S.  641;  Reg.  v.  Holmes,  12  Cox  Cr. 
Cas.  137;  Strang  v.  People,  24  Mich. 
1;  People  v.  Knight,  (Cal.)  43  Pac. 
6;  80  Am.  Dec.  368,  note. 

"McQuirk  v.  State,  84  Ala.  435, 
4  So.  775,  5  Am.  St.  381;  Barnes  v. 
State,  88  Ala.  204,  207,  7  So.  38; 
People  V.  Abbott,  97  Mich.  484,  36  N. 
W.  862,  37  Am.  St.  360;  State  v. 
Jefferson,  6  Ired.  L.  (N.  Car.)  305; 
Bailey  v.  State,  57  Neb.  706,  78  N. 
W.  284,  73  Am.  St.  540;  Woods  v. 
People,  55  N.  Y.  515;  Rex  v.  Martin, 
6  Car.  &  P.  562;    Bedgood  v.  State, 

115  Ind.  275,  17  N.  E.  621;  Hall  v. 
People,  47  Mich.  636,  11  N.  W.  414; 
State  V.  Cassidy,  85  Iowa  145,  52  N. 
W.  1;  State  v.  Cook,  65  Iowa  560,  22 
N.  W.  675;  State  v.  Forshner,  43  N. 
H.  89;  People  v.  Grauer,  12  App.  Div. 
(N.  Y.)  464,  42  N.  Y.  S.  721;  see  also. 
Rice  V.  State,  35  Fla.  236,  17  So.  286, 
48  Am.  St.  254.  So,  evidence  of  acts 
of  intercourse  with  other  persons 
may  sometimes  be  admissible  to  re- 
but matters  shown  by  the  state, 
such  as  the  condition  of  the  woman, 
indicating  sexual  intercourse  relied 
upon  to  charge  the  defendant,  a 
venereal  disease,  or  the  like.  Nugent 
V.  State,  18  Ala.  521;  People  v.  Craig, 

116  Mich.  388,  74  N.  W.  528;  Bice  v. 
State,  37  Tex.  Cr.  App.  38,  38  S.  W. 
803. 


3102.] 


RAPE, 


418 


there  is  some  difference  of  opinion.    The  subject  will  be  considered  in 
the  section  on  evidence  of  other  offenses. 

§  3102.  Corroboration. — In  the  absence  of  any  statutory  require- 
ment to  that  effect,  the  testimony  of  the  prosecuting  witness  may  be 
sufficient  to  support  a  conviction  without  corroboration.^*  But  in 
some  jurisdictions,  corroboration  is  necessary ,*^^  and,  in  all,  proper  evi- 
dence is  admissible  for  that  purpose.  It  is  not  necessary  that  the 
ravished  woman's  testimony  be  confirmed  by  an  examination  of  her 
person  or  by  medical  experts.^**  It  has  been  held  that  one  may  be  con- 
victed of  the  charge  of  rape  upon  the  unsupported  and  uncorroborated 
evidence  of  a  child  under  the  years  of  discretion,  if  the  manner  and 
testimony  of  the  child  remove  every  reasonable  doubt  from  the  mind& 
of  the  jurors.*'^  For  the  purpose  of  corroboration,  the  prosecution 
may  show  that  the  woman  made  complaint  immediately  after  the 
ravishment,*^^  and,  as  already  shown,  the  details  may  be  given  to  cor- 
roborate her,  after  she  has  been  impeached.  It  has  also  been  held 
that  the  relation  of  the  parties  and  the  opportunity  offered  the  de- 
fendant of  meeting  the  prosecutrix  may  be  shown.*'''    The  conduct  of 


»*Barnett  v.  State,  83  Ala.  40,  3 
So.  612;  Curby  v.  Territory,  4  Ariz. 
371,  42  Pac.  953;  Frazier  v.  State, 
56  Ark.  242,  19  S.  W.  838;  People 
V.  Stewart,  90  Cal.  212,  27  Pac.  200; 
State  V.  Lattin,  29  Conn.  389;  Doyle 
V.  State,  39  Fla.  155,  22  So.  272,  63 
Am.  St.  159;  Coney  v.  State,  108  Ga. 
773,  36  S.  E.  907;  State  v.  Ander- 
son, 6  Idaho  706,  59  Pac.  180;  John- 
son V.  People,  197  111.  48,  64  N.  E. 
286;  People  v.  Miller,  96  Mich.  119, 
55  N.  W.  675;  Monroe  v.  State,  71 
Miss.  196,  13  So.  884;  State  v.  Wil- 
cox, 111  Mo.  569,  20  S.  W.  314,  33 
Am.  St.  551;  State  v.  Knighten,  39 
Ore.  63,  64  Pac.  866;  Keith  v.  State, 
(Tex.  Cr.  App.)  56  S.  W.  628;  Giv- 
ens  V.  Commonwealth,  29  Gratt. 
(Va.)  830;  Lanphere  v.  State,  114 
Wis.  193,  89  N.  W.  128;  Tway  v. 
State,  7  Wyo.  74,  50  Pac.  188. 

«=  See,  Eager  v.  State,  22  Neb.  332, 
35  N.  W.  195;  People  v.  Kunz,  76 
Hun   (N.  Y.)    610,  27  N.  Y.  S.  945; 


People  V.  Page,  162  N.  Y.  272,  56  N. 
E.  750;  People  v.  Terwilliger,  74  Hun 
(N.  Y.)  310;  26  N.  Y.  S.  674;  State  v. 
Carnagy,  106  Iowa  483,  76  N.  W. 
805;  State  v.  Wheeler,  116  Iowa 
212;   89  N.  W.  978. 

""State  v.  Lattin,  29  Conn.  389; 
Poison  V.  State,  137  Ind.  519,  35  N. 
E.  907,  holds  that  the  physician 
may  testify  to  the  condition  of  the 
female,  if  he  has  examined  the 
woman. 

"  Territory  v.  Keyes,  5  Dak.  244, 
38  N.  W.  440;  limited  in,  Montresser 
V.  State,  19  Tex.  App.  281;  Jones  v. 
State,    68    Ga.    760. 

•=^  Thompson  v.  State,  38  Ind.  39; 
State  v.  Mitchell,  68  Iowa  116,  26 
N.  W.  44;  Smith  v.  State,  47  Ala. 
540;  State  v.  Niles,.47  Vt.  82;  Phil- 
lips V.  State,  9  Humph.  (Tenn.)  246, 
49  Am.  Dec.  709;  Cross  v.  State,  132 
Ind.  65,  31  N.  E.  473. 

"« People  V.  Abbott,  97  Mich.  484, 
56  N.  W.  862,  37  Am.  St.  360. 


419  CORROBOEATIOX ADMISSIONS    AXD    COXFESSIOXS.       [§    3103. 

both  the  prosecutrix  and  of  the  defendant  may  be  shown  in  a  proper 
case  in  corroboration  of  the  prosecutrix,  or,  as  affecting  her  credi- 
bility, as  tending  to  disprove  the  commission  of  the  offense.'"  The 
condition  of  the  woman's  clothes  and  underwear  immediately  after 
the  rape,"  may  be  shown.  So,  it  has  been  held,  may  the  conduct  of 
the  defendant  while  in  the  presence  of  the  prosecutrix  immediately 
after  the  alleged  offense.^^  The  physical  condition  and  marks  upon 
the  person  of  the  woman  afterwards,"  may  be  shown  in  a  proper  case, 
but  it  has  been  held  that  the  refusal  of  the  prosecutrix  to  submit  to 
a  physical  examination  cannot  be  shown  to  discredit  her  testimony.^* 
Evidence  of  the  apparent  physical  and  mental  condition,  such  as  her 
appearance,  red  face  and  swollen  eyes,  and  of  her  crying  shortly  after 
the  occurrence  is  competent.''^  This  is  held  on  the  same  ground  on 
which  her  complaint  is  admitted,  as  tending  to  corroborate  her  and 
to  determine  the  credit  to  be  given  to  her  testimony. 

§  3103.  Admissions  and  confessions. — In  a  prosecution  for  rape'^ 
statements  of  the  accused  admitting  guilt  are  admissible ;  and  evidence 
that  the  defendant  at  the  time  of  the  offense,  used  obscene  language, 
indicating  a  determination  to  have  intercourse  with  girls  that  night, 
if  he  had  to  force  them,  is  competent.'''^    The  declaration  of  the  ac- 

•"Huber  v.  State,  126  Ind.  185,  25  Plynn,  96  Mich.  276,  55  N.  W.  834; 

N.  E.  904;   People  v.  Lenon,  79  Cal.  Gifford    v.    People,    148    111.    173,    35 

625,  21  Pac.  967;  People  v.  Stewart,  N.  E.  754;  State  v.  Watson,  81  Iowa 

97  Cal.  238,  32  Pac.  8;  Dyer  v.  State,  380,  46  N.  W.  868. 

(Tex.  Cr.  App.)  83  S.  W.  192.     Let-  '*  Barnett  v.   State,   83   Ala.   40,   3 

ters  written  by  the  defendant  to  the  So.   612;    Poison  v.   State,   137   Ind. 

prosecutrix  corroborating  her  testi-  519,  35  N.  E.  907,  holds  that  physi- 

mony  are  admissible.     State  v.   De  cian  may  testify  upon  the  part   of 

Witt,  (Mo.)  84  S.  W.  956.  the  state. 

"Grimmett  v.  State,  22  Tex.  App.  "People  v.  Batherson,  50  Hun  (N. 

36,    2    S.    W.    631,    58    Am.    R.    630;  Y.)    44,  6  N.  Y.   Cr.  173,  2  N.  Y.   S. 

State  v.  Montgomery,  79  Iowa  737,  376;   State  v.  Bedard,  65  Vt.  278,  26 

45   N.  W.  292;    State  v.   Robertson,  Atl.  719. 

38  La.  Ann.  618,  58  Am.  R.  201.  '« People  v.  Roach,  129  Cal.  33,  61 

"Conkey  v.   People,  1   Abb.   App.  Pac.  574;    Hogan  v.  State,  46  Miss. 

Dec.   (N.  Y.)   418.  274;    People    v.    Flaherty,    27    App. 

"Poison  v.  State,  137  Ind.  519,  35  Div.    (N.  Y.)    535,   50  N.  Y.   S.   574, 

N.  E.   907;    Scott  v.    State,   48   Ala.  162  N.  Y.  532,  57  N.  E.  73;   State  v. 

420;  State  v.  Reid,  39  Minn.  277,  39  De  Witt,   (Mo.)   84  S.  W.  956. 

N.  W.  796;   Myers  v.  State,  84  Ala.  "  Massey  v.  State,  31  Tex.  Cr.  App. 

11,  4  So.  291;    Hannon  v.   State,  70  371,  20  S.  W.  758;   Barnes  v.  State, 

Wis.    448,    36    N.    W.    1;    People    v.  88  Ala.  204,  7  So.  38,  16  Am.  St.  48; 


§  3103.]  KAPE.  .  430 

cused  of  his  misconduct  with  other  females,  however,  is  not  admissible 
to  show  guilt  in  the  case  at  barJ^  And  in  a  recent  case,  which  was  a 
prosecution  for  rape  without  force,  it  was  lield  that  the  fact  that  de- 
fendant was  over  sixteen  years  of  age,  being  a  necessary  element  of 
the  corpus  delicti,  under  the  statute,  could  not  be  proved  by  defend-' 
ant's  confession  alone  J"  Where,  on  a  prosecution  for  assault  with 
intent  to  rape,  the  theory  of  the  state  was  that  the  defendant  had  en- 
ticed the  prosecutrix  into  his  barber  shop,  and  there  committed  the 
assault,  it  was  held  proper  to  admit  the  testimony  of  her  father  that 
when  he  reached  the  shop,  shortly  after  the  alleged  assault,  he  asked 
defendant  if  prosecutrix  had  been  there,  and  that  defendant  said  that 
she  had;  such  evidence  being  competent  proof,  as  an  admission  by 
defendant  of  a  material  fact  in  the  case,  and  also  to  show  that  the 
defendant,  having  told  another  witness  about  the  same  time  that  the 
prosecutrix  had  not  been  there,  had  made  conflicting  statements.^'* 
Statements  of  the  prosecutrix  that  defendant  was  not  guilty  or  that 
she  had  caused  his  arrest  to  extort  money,  have  been  held  admissible.^^ 
Testimony  of  the  prosecuting  witness  on  a  preliminary  examination 
before  a  justice  of  the  peace  relative  to  the  same  offense  and  evidence 
as  to  the  motive  for  changing  her  testimony  should  be  admitted  in 
attacking  the  credibility  of  the  prosecuting  witness.*^  Where  the  de- 
fendant admits  the  sexual  intercourse,  but  claims  the  female's  consent 
tliereto,  the  state  is  relieved  of  further  proof  of  the  act.*^  So,  state- 
ments of  the  prosecutrix  that  she  did  not  consent  and  as  to  the  force 

see  also,  Ricks  v.   State,    (Tex.  Cr.  unable    to    identify    him.      State   v. 

App.)  87  S.  W.  345,  where  a  witness  Icenbice,    (Iowa)    101  N.  W.  273. 

was   permitted   to   testify   that   the  «°  People    v.    Scalamiero,    143    Cal. 

accused    had    called    attention   to    a  343,    76    Pac.    1098;     see,    however, 

tree    under    which    the    prosecutrix  People  v.  Page,  162  N.  Y.  272,  56  N. 

testified    that    the    intercourse    had  E.  750. 

talcen  place  and  had  asked  the  wit-  ^^  Shirwin    v.    People,    69    111.    55; 

ness   if   he   supposed    any    girl   had  see  also,  Bessette  v.  State,  101  Ind. 

ever  had   sexual   intercourse  under  85;    Callison   v.    State,   37   Tex.   Cr. 

such  tree.  App.  211,  39  S.  W.  300.   But  as  here- 

"  People   v.   Bowen,    49    Cal.    654;  inafter    shown,    admissions    of    the 

People  V.   Stewart,   85   Cal.    174,   24  prosecutrix      are      not,      ordinarily, 

Pac.  722;   Janzen  v.  People,  159  111.  treated  as  admissions  of  the  state  or 

440,  42  N.  E.  862.  substantive  evidence. 

•'Wistrand  v.  People,   213  111.  72,  **=  Bessette   v.    State,   101    Ind.    85; 

72    N.   E.    748.     But   his   confession  McMath  v.  State,  55  Ga.  303. 

has  been  held  sufficient  evidence  to  »^  Anderson  v.  State,  104  Ind.  467, 

go   to    the   jury    on    the    subject    of  4  N.  E.  63. 
identity,  where  the  prosecutrix  was 


421 


CIRCUMSTANTIAL    KVIDKKCK.  [§    3194. 


used,  if  made  in  the  presence  of  the  defendant  and  not  denied  by  him, 
are  admissible.^*  But,  while  statements  of  the  prosecutrix  contrary 
to  her  testimony  are  competent  as  impeaching  evidence,  they  are  not 
admissions,  as  the  state  is  the  real  party,  and  her  attention  must  first 
be  called  to  them  as  in  other  cases  of  impeachment  of  a  witness  by  con- 
tradictory statements.^^  So,  where  the  prosecuting  witness  was  not 
constant  in  her  accusation,  and  on  the  trial  testified  that  her  deposi- 
tion before  the  examining  magistrate  was  false,  it  was  held  that  such 
deposition  was  admissible  only  for  the  purpose  of  contradicting  her 
testimony,  and  was  not  substantive  evidence  which  the  jury  was  en- 
titled to  consider  as  evidence  of  commission  of  the  crime  charged.^* 

§  3104.  Evidence  generally — Circumstantial  evidence. — The  cir- 
cumstance surrounding  the  act  may  be  shown  as  tending  to  prove 
whether  or  not  consent  was  given  or  the  intercourse  was  against  the 
will  of  the  prosecuting  witness."  The  relative  physical  strength  of 
the  two  parties  may  be  shown.^**  The  defendant  may  also  show  that 
there  was  no  objection  except  a  mere  verbal  one,  and  that  the  prosecu- 
trix made  no  outcry  or  actual  resistance,  and  that  the  act  was  com- 
mitted in  such  a  place  that  a  cry  or  alarm  would  have  been  heard  by 
others.'*''  It  has  also  been  held  that  the  fact  that  no  complaint  was 
made  within  a  reasonable  time,  or  that  the  prosecutrix  had  brought  a 
civil  action  for  seduction,  may  be  shown  by  the  defendant  in  the 

**  People  V.  Flynn,  96  Mich.  276,  55  evidence  that  defendant  tried  to  pro- 

N.  W.   834;    see  also,  Humphrey  v.  cure  an  abortion  was  held  inadmis- 

State,  (Tex.  Cr.  App.)  83  S.  W.  187.  sible  in,  Darrell  v.   Commonwealth, 

«=  State  V.  Brady,  (N.  J.  L.)  59  Atl.  26  Ky.  L.  R.  541,  82  S.  W.  289,  where 

6;   see  also,  People  v.  Lambert,  120  he  admitted  the  intercourse,  and  the 

Cal.  170,  52  Pac.  307;   State  v.  Shet-  only  question  was  as  to  consent, 

tleworth,  18  Minn.  208;  State  v.  Yo-  ^'Jenkins    v.    State,    1    Tex.    App. 

cum,    117    Mo.    622,    23    S.    W.    765;  346;   People  v.  Crego,  70  Mich.  319, 

State  V.  Sudduth,  52  S.  Car.  488,  30  38   N.   W.   281;    Brown  v.  Common- 

S.  E.  408.  wealth,  82  Va.  653;  Nugent  v.  State, 

*«  People  v.  Miner,  (Mich.)  101  N.  18   Ala.   521;    Richards  v.    State,   36 

W    536.  Neb.  17,  53  N.  W.  1027. 

»'  Bean  v.  People,  124  111.  576,  16  *""  State  v.   Cross,   12   Iowa  66,   79 

N.  E.  56;  People  v.  Crego,  70  Mich.  Am.   Dec.   519;    Reynolds  v.  People, 

319,  38  N.  W.  281;    State  v.  Knapp,  41   How.    (N.  Y.)    179;    State  v.  Mc- 

45  N.  H.   148;    Nugent  v.   State,  18  Caffrey,  63  Iowa  479,  19  N.  W.  331; 

Ala.  521;  Commonwealth  v.  Thomp-  State  v.  Cone,  1  Jones  L.   (N.  Car.) 

son,  116  Mass.  346;  People  v.  Flynn,  18;   Bean  v.  People,  124  111.  575,  16 

96  Mich.  276,  55  N.  W.  834;    People  N.  E.  56. 
V.  Mayes,  66   Cal.  597,  6  Pac.   691; 


§  3104.]  RAPE.  422 

criminal  prosecution  for  rape.""  So,  as  a  circumstance  tending  to 
prove  the  defendant  not  guilty  of  rape,  it  may  be  shown  that  the  pros- 
ecuting witness,  just  after  the  time  the  crime  is  alleged  to  have  been 
committed,  treated  the  defendant  in  a  friendly  manner.^^  The  age 
and  relations  of  the  parties  may  be  shown  as  circumstances  bearing 
upon  the  question  of  consent.'^-  It  has  also  been  held  that  the  mental 
capacity  of  the  prosecutrix,  her  age  and  her  demeanor,  as  exhibited 
during  the  trial,  may  be  taken  into  consideration.^^  Evidence  to 
the  effect  that  upon  the  woman's  crying  out,  the  defendant  immed- 
iately relinquished  his  effort  and  fled  is  competent  on  the  question,  of 
proving  intent  to  rape,^*  and  the  fact  that  the  defendant  caught  the 
woman  or  chased  her  in  a  private  place  may  be  considered  as  a  cir- 
cumstance tending  to  prove  the  actual  intent  of  the  defendant.^^  It 
has  also  been  held  that  the  facts  that  defendant  left  his  home  im- 
mediately after  the  offence  was  committed,  and  that  search  was  made 
for  him  are  admissible  against  him."''  And  it  has  likewise  been  held 
that  the  relations  between  the  prosecutrix  and  defendant  prior  to  the 
alleged  offence  may  be  shown,®^  and  that  the  prosecutrix  may  be  asked 
if  upon  former  occasions  she  did  not  consent  to  intercourse. ^^  Evi- 
dence of  mere  opportunity  for  sexual  intercourse  is  not  of  itself  suf- 
ficient to  show  it,""  but  it  may  be  inferred  from  circumstances,  as  where 

»"Eyler  v.  State,  71  Ind.  49;   Pol-  N.  E.  904;    State  v.  Hollenbeck,  67 

lard  v.  State,  2  Iowa  567;   State  v.  Vt.  34,  30  Atl.  696. 

Reid,  39  Minn.  277,  39  N.  W.  796;  »==  People  v.  Burwell,  106  Mich.  27, 

People  V.  Knight,   (Cal.)   43  Pac.  6.  63  N.  W.  986;  Hawkins  v.  State,  136 

In   a   prosecution   for   assault   with  Ind.  630,  36  N.  E.  419;  State  v.  Mc- 

intent  to  rape,  defendant  contended  Caffrey,  63  Iowa  479,  19  N.  W.  331. 

that   the    prosecutrix    consented    to  "'  State  v.  Philpot,  97  Iowa  365,  66 

all  that  was  done,  and  evidence  of  N.  W.  730;    Thompson  v.   State,  44 

a  witness,  who  was  not  more  than  Neb.  366,  62  N.  W.  1060. 

sixty-five  feet  from  the  prosecutrix  =>*  Taylor  v.  State,  50  Ga.  79. 

at  the  time  of  the  alleged  assault,  "=  State  v.  Donovan,  61  Iowa  369, 

that  he  called  to  her  in  a  loud  voice  16  N.  W.  206;   Jackson  v.  State,  91 

for  the  purpose  of  attracting  her  at-  Ga.  322,  18  S.  E.  132,  44  Am.  St.  25. 

tention,   together   with   the    conver-  »"  People  v.  Mayes,  66  Cal.  597,  6 

sation  had  between  the  witness  and  Pac.   691 ;    see  also.   Smith  v.   Com- 

his  wife  at  the  time  with  reference  monwealth,  26  Ky.  L.  R.  1229,  83  S. 

to  what  they  saw  and  did  in  conse-  W.  647. 

quence  thereof,  was  held  admissible  *'  State  v.   Hollenbeck.  67  Vt.   34, 

for  the  purpose  of  contradicting  the  30  Atl.  696. 

prosecutrix    and    corroborating    de-  "'People  v.  Abbott,  97  Mich.   484, 

fendant's  testimony.    State  v.  Huff,  56  N.  W.  862,  37  Am.  St.  360. 

(N.  Car.)   49  S.  E.  339.  ''"State   v.    Scott,   28   Ore.    331,   42 

"^Huber  v.  State,  126  Ind.  185,  25  Pac.  1;  Bishop  Stat.  Cr.,  §  679. 


423  OTHER  OFFENSES.  [§  3105. 

a  lascivious  disposition  is  shown  together  with  the  fact  that  the 
parties  occupied  the  same  bed  under  circumstances  indicating  sexual 
intercourse,  and  penetration  may  be  inferred  from  this  and  other  cir- 
cumstantial evidence.^*"' 

§  3105.  Other  offenses. — The  general  rule  that  evidence  of  other 
offenses  is  incompetent  to  show  the  guilt  of  the  defendant  in  the  case 
on  trial  obtains  in  cases  of  rape  as  in  other  cases. ^^^  But  such  evi- 
dence has  been  held  admissible  to  explain  the  submission  of  the  prose- 
cutrix,"- and  when  part  of  the  res  gestae."^  And  other  acts  of  undue 
intimacy  between  the  defendant  and  the  prosecutrix  may  be  shown  by 
him,  in  a  proper  case,  as  furnishing  a  predicate  for  the  presumption 
or  inference  of  consent  on  the  occasion  in  question.^"'*  It  is  also  held 
in  a  recent  case  that  on  a  prosecution  for  rape  of  a  girl  under  the  age 
of  consent,  testimony  of  subsequent  as  well  as  prior  acts  of  illicit  inter- 
course between  the  parties  is  admissible  to  corroborate  her."^  The 
same  view  is  also  taken  in  some  other  jurisdictions.^"*'  But  there  is 
much  conflict  upon  the  subject.  In  one  or  two  jurisdictions  it  seems 
to  have  been  held  that  neither  prior  nor  subsequent  acts  of  intercourse 
between  the  parties  can  be  shown. ^•'^     In  others,  it  is  held  that  evi- 

^•^  State  V.  Welch,  41  Ore.   35,   68  880;    Parkinson   v.    People,    135    111. 

Pac.  809;  State  v.  Carnagy,  106  Iowa  401,  25  N.  E.  764;  State  v.  Borchert, 

483,  76  N.  W.  805;    Commonwealth  68  Kans.  360,  74  Pac.  1108. 

V.   Hollis,   170   Mass.   433,   49   N.   E.  ^"^  Barnes  v.  State,  88  Ala.  207,  7 

632;    People   v.   Scouten,   130   Mich.  So.  38;  People  v.  Goiilette,  82  Mich. 

620,  90  N.  W.  332;   Taylor  v.  State,  36,  45  N.  W.  1124;  State  v.  Cook,  65 

111  Ind.  279,  12  N.  E.  400;    Brauer  Iowa  560,  22  N.  W.  675. 

v.  State,  25  Wis.  413.  "=  Woodruff  v.   State,    (Neb.)    101 

^"'People  V.   Bowen,   49   Cal.    654;  N.  W.  1114. 

Janzen  v.  People,  159  111.  440,  42  N.  ^"^  State  v.  King,  117  Iowa  768,  91 

E.    862;    Parkinson    v.    People,    135  N.    W.     768;     People    v.     Edwards, 

111.  401,  25  N.  E.  764;   State  v.  Bon-  (Cal.)    73    Pac.    416;    State   v.    Bor- 

sor,  49  Kans.  758,  31  Pac.  736;  State  chert,    68   Kans.   360,  74   Pac.   1108; 

V.    Stevens,    56    Kans.    720,    44    Pac.  Smith  v.  Commonwealth,  22  Ky.  L. 

992;    State    v.    Masteller,    45    Minn.  B.    1349,    60    S.    W.    531;     State    v. 

128,  47  N.  W.  541;   Owens  v.  State,  Robertson,  121  N.  Car.  551,  28  S.  E. 

39  Tex.  Cr.  App.  391,  46  S.  W.  240.  59;  Sykes  v.  State,  (Tenn.)  82  S.  W. 

"-Strang  v.   People,    24    Mich.    1;  185;     State    v.    Fetterly,    33    Wash, 

see  also.   People  v.   Fultz,   109   Cal.  599,  74  Pac.  810;  Lanphere  v.  State, 

258,  41  Pac.  1040.  114  Wis.  193,  89  N.  W.  128. 

"^See,    State   v.   Taylor,   117    Mo.  ""Parkinson    v.    People,    135    111. 

181,  22  S.  W.  1103;   Cross  v.  State.  401,  25  N.  E.  764;  see  also,  Barnett 

138  Ind.  254,  37  N.  E.  790;  People  v.  v.  State,  44  Tex.  Cr.  App.  592,  73  S. 

O'Sullivan,  104  N.  Y.  481,  10  N.  E.  W.   399,  overruling  prior  decisions. 


§§  3106,  3107.] 


RAPE. 


424 


dence  of  such  prior  acts  between  the  parties  is  admissible  and  that 
evidence  of  subsequent  acts  is  not,  ordinaril}^  admissible.^"* 

§  3106.  Real  evidence. — Eeal  evidence  is  often  admissible  in  cases 
of  rape.  Thus,  evidence  is  not  only  admissible  as  to  the  condition  of 
the  clothing  of  the  prosecutrix  after  the  alleged  rape,  but  the  clothing 
itself  may  be  exhibited  and  put  in  evidence.^"''  It  must,  however,  be 
identified  as  that  worn  by  her  at  the  time  of  the  offense. "°  So,  where 
the  defendant's  hat  was  identified  and  corresponded  with  the  de- 
scription given  by  witnesses  of  the  hat  worn  by  him  on  the  occasion 
in  question,  it  was  held  admissible  in  evidence.^ ^^  As  elsewhere 
shown,  it  is  also  held  in  many  jurisdictions  that  the  child,  of  which 
the  defendant  is  claimed  to  be  the  father,  may  be  exhibited  to  the 
jury. 

§  3107.  Physical  examination  and  medical  testimony. — As  al- 
ready shown,  the  condition  of  the  clothing,  the  physical  condition,  of 
the  prosecutrix,  marks  of  violence,  and  even  her  mental  condition, 
may  be  shown  in  a  proper  case.^^^  So,  for  the  purpose  of  proving  pen- 
etration the  condition  of  the  private  parts  of  the  prosecutrix  after  the 
alleged  rape  may  be  shown,^^^   This  is  usually,  although  not  necessarily. 


See  also,  People  v.  Harris,  103  Mich. 
473,  61  N.  W.  871. 

"^See,  People  v.  Etter,  81  Mich. 
570,  45  N.  W.  1109  People  v.  Fowler, 
104  Mich.  449,  62  N.  W.  572;  People 
V.  Robertson,  88  App.  Div.  (N.  Y.) 
198,  84  N.  Y.  S.  401;  State  v.  Neel, 
23  Utah  27,  65  Pac.  494;  State  v. 
Hilberg,  22  Utah  27,  61  Pac.  215; 
State  v.  Scott,  172  Mo.  536,  72  S.  W. 
897;  see  also.  State  v.  Lancaster, 
(Idaho)  78  Pac.  1081;  Smith  v. 
State,  (Tex.  Cr.  App.)  73  S.  W. 
401;  Manning  v.  State,  43  Tex.  Cr. 
App.  54,  65  S.  W.  920;  see,  62  L.  R. 
A.  332-338,  note,  reviewing  authori- 
ties upon  the  general  subject. 

^"^  Ransbottom  v.  State,  144  Incl. 
250,  43  N.  E.  218;  State  v.  Peterson, 
110  Iowa  647,  82  N.  W.  329;  State 
v.  Murphy,  118  Mo.  7,  25  S.  W.  95; 
Long  V.  State,  39  Tex.  Cr.  App.  461, 
46  S.  Y/.  821. 


""Lowe  V.  State,  97  Ga.  792,  25 
S.  E.  676;  Gonzales  v.  State,  32  Tex. 
Cr.  App.  611,  25  S.  W.  781. 

"'  State  V.  Neal,  178  Mo.  63,  76  S. 
W.  958;  see  also.  Vol.  II,  §  1232. 

"^  In  addition  to  authorities  else- 
where cited,  see.  People  v.  Keith, 
141  Cal.  686,  75  Pac.  304;  State  v. 
Carpenter,  (Iowa)  98  N.  W.  775; 
State  V.  Sudduth,  52  S.  Car.  488,  30 
S.  E.  408;  Bannen  v.  State,  115  Wis. 
317,  91  N.  W.  107. 

"=*  Myers  v.  State,  84  Ala.  11,  4 
So.  291;  Gifford  v.  People,  148  111. 
173,  35  N.  E.  754;  Poison  v.  State, 
137  Ind.  519,  35  N.  E.  907;  State  v. 
Sanford,  124  Mo.  484,  27  S.  W.  1099, 
and  authorities  cited  in  following 
note.  But  it  is  not  absolutely  neces- 
sary. State  V.  Ogden,  39  Ore.  195,  65 
Pac.  449;  Barnett  v.  State,  88  Ala. 
40,  3  So.  612;  Frazier  v.  State,  56 
Ark.    242,    19    S.    W.    383.     As    to 


425  DEFENSES.  [§   3108. 

shown  by  the  testimony  of  a  physician  who  made  the  examination,  and 
the  fact  that  the  examination  was  not  made  for  several  weeks,  or  even 
months  perhaps,  after  the  time  of  tlie  alleged  offense  does  not  necessa- 
rily render  the  evidence  incompetent,  but  goes  to  its  weight  rather 
than  to  its  competency."*  The  time  may  be  so  remote,  however,  as  to 
justify  or  even  require  the  exclusion  of  the  evidence."^  Expert  evi- 
dence is  also  admissible  on  various  other  questions  in  rape  cases,^^* 
but  not,  it  seems,  as  to  the  effect  of  indecent  liberties  upon  the  mind 
of  the  prosecutrix,"'  nor  as  to  whether  sexual  intercourse  could  be 
accomplished  without  the  consent  or  against  the  resistance  of  a 
woman."® 

§  3108.  Defenses. — The  defense  in  cases  of  rape  most  often  con- 
sists in  controverting  the  evidence  of  the  state  that  force  was  used 
and  that  the  act  was  without  the  woman's  consent,  although,  of  course, 
the  sexual  intercourse  may  be  denied  altogether  or  the  defendant  may 
show  that  he  was  not  the  guilty  party.  Proper  evidence  legitimately 
tending  to  prove  any  of  these  matters  in  defense  is  always  competent 
and  admissible.  So,  the  defendant,  as  in  other  cases,  may  introduce 
evidence  of  his  own  good  character  for  chastity."'*  So,  there  are 
cases  in  which  the  defendant  may  show  the  improper  motive  of  the 

whether  an  examination  will  be  or-  "^People  v.  Baldwin,  117  Cal.  244, 

dered  at  the  request  of  the  defend-  49    Pac.    186;    State   v.    Watson,    81 

ant,  see,   State  v.  Piicca,    (Del.)    55  Iowa  380,  46  N.  W.   868;    People  v. 

Atl.   831;    Barnett  v.   State,  83  Ala.  Duncan,    104    Mich.    460,    62    N.    W. 

40,  3   So.   612;    McGuff  v.   State,   88  556;    Young  v.   Johnson,   123   N.   Y. 

Ala.    147,    7    So.    35,    and    Vol.    II,  226,  25  N.  E.  363;    Proper  v.  State, 

§§  1231,  1232,  1237,  1238.  85  Wis.  615,  55  N.  W.  1035. 

"*  People  v.  Bene,  130  Cal.  159,  62  "'  People  v.  Royal,  53  Cal.  62. 

Pac.  404;   Gifford  v.  People,  148  III.  ''« People  v.  Bene,  130  Cal.  159,  62 

173,  35  N.  E.  754;   State  v.  Watson,  Pac.  404;   Cook  v.  State,  24  N.  J.  L. 

81  Iowa  380,  46  N.  W.  868;  State  v.  843;    Noonan  v.  State,  55  Wis.  258, 

Teipner,  36  Minn.  535,  32  N.  W.  678.  12  N.  W.  379;   Woodin  v.  People,  1 

State  v.  Scott,  172  Mo.  536,  72  S.  W.  Park.  Cr.  Cas.  (N.  Y.)  464;  see  also, 

897;  Lyles  v.  United  States,  20  App.  State  v.  Hull,  45  W.  Va.  767,  32  S. 

Cas.   (D.  C.)  559;  Commonwealth  v.  E.  240. 

Allen,  135  Pa.  St.  483,  19  Atl.  957;  "'' Hardkte  v.   State,  67  Wis.   552, 

Gonzales  v.  State,  32  Tex.  Cr.  App.  30  N.  W.  723;  Lincecum  v.  State,  29 

611,  25  S.  W.  781.  Tex.  App.  328,  15  S.  W.  818,  25  Am. 

"=  State  v.  Evans,  138  Mo.  116,  39  St.  727;  evidence  of  general  reputa- 

S.  W.  462,  60  Am.  St.  549;  People  v.  tion  for  peace  or  violence  was  held 

Butler,  55  App.  Div.  (N.  Y.)  361,  66  admissible     in,     Horton     v.     State, 

N.  Y.  S.  851;  People  v.  Cornelius,  36  (Miss.)    36  So.  1033;   but  see.  State 

App.  Div.    (N.  Y.)    361,  55  N.  Y.  S.  v.  Brady,  (N.  J.  L.)  59  Atl.  6. 
723. 


§  3108.]  RAPE.  426 

prosecution.^20  other  matters  that  may  be  shown  by  the  defendant  as 
bearing  upon  the  question  of  consent  or  the  credibility  of  the  prose- 
cutrix have  already  been  considered.  Condonation  by  the  woman  can- 
not be  shown  as  a  defense  in  the  criminal  prosecution. ^^^  Wliere  it 
is  only  shown  that  the  defendant  took  indecent  liberties  with  the 
person  of  the  prosecutrix,  with  or  without  her  consent,  the  defendant 
cannot  be  found  guilty  of  rape,  even  if  the  female  was  under  the 
statutory  age.^"  To  be  guilty  of  rape  some  slight  penetration  must 
be  proved  and  against  her  will.^^^  Impotence  is  a  defense,^^*  and  in- 
toxication may  render  one  temporarily  impotent  ;^2^  but,  if  the  crime 
is  consummated,  intoxication  is  not  a  good  defense.^-^  It  has  been 
held,  however,  that  it  may  be  a  defense  to  a  prosecution  for 
assault  with  intent  to  rape,  where  it  is  such  as  to  prevent  the  forma- 
tion of  the  necessary  specific  intent. ^-^  The  defendant,  if  under  four- 
teen years  of  age  may  also  show  that  fact  in  defense  as  at  least  raising 
the  presumption  that  he  was  unable  to  commit  rape.  At  common  law 
this  presumption  seems  to  have  been  conclusive,  but  it  is  now  generally 
regarded  as  rebuttable.^-^  The  fact  that  the  defendant  was  ignorant 
of  the  age  of  the  prosecutrix,  who  was  in  reality  under  the  age  of 
consent,  and  believed  that  she  was  of  sufficient  age  to  give  con- 
sent, is  no  defense. ^^^     Nor  is  the  previous  unchastity  of  the  woman 

^^"Curby  v.   Territory,    (Ariz.)    42  Jeffers  v.  State,  10  Ohio  Dec.  832,  20 

Pac.    953;     State    v.    McDevitt,    69  Ohio  C.  C.  294. 

Iowa  549,  29  N.  W.  459;   Shirwin  v.  ""People  v.  Murray,  72  Mich.  10, 

People,  69  111.  55.  40  N.  W.  29;    State  v.  Murphy,  118 

"1  Commonwealth  v.  Slattery,  147  Mo.  7,  25  S.  W.  95;   Crew  v.  State, 

Mass.   423,   18   N.   E.   399;    State   v.  (Tex.  Cr.  App.)  23  S.  W.  14. 

Newcomer,    59    Kans.    668,    54    Pac.  "•  State  v.  Donovan,  61  Iowa  369, 

€85.  16  N.  W.  206;   Reagan  v.   State,  28 

"^  "=  Stephens  v.  State,  107  Ind.  185,  Tex.  App.   227,   12   So.   601,   19   Am. 

8  N.  E.  94;  White  v.  State,  136  Ind.  St.  833,  36  L.  R.  A.  479,  note. 

308,  36  N.  E.  274.  '"'  See,  Bird  v.  State,  110  Ga.  315, 

1-^  Commonwealth     v.     McDonald,  35  S.  E.  156;   Williams  v.  State,  20 

110  Mass.  405;   Taylor  v.  State,  111  Fla.     777;     Davidson     v.     Common- 

Ind.  279,  12  N.  E.  400.  wealth,  20  Ky.  L.  R.  540,  47  S.  W. 

"*  Nugent  v.    State,   18   Ala.    521;  213;    State   v.    Coleman,   54   S.   Car. 

see  also.  State  v.  McCune,  16  Utah  162,  31   S.  E.   866;    Foster  v.   Com- 

170,  51  Pac.  818;   Reg.  v.  Williams,  monwealth,    96    Va.    306,    31    S.    E. 

L.   R.,    (1893)    1   Q.   B.   320.    Expert  503. 

evidence  as  to  lost  virility  is  held  ""  People  v.  Ratz,  115  Cal.  132,  46 

admissible.    State  v.  Walke,  (Kans.)  Pac.   915;    Holton  v.   State,   28   Fla. 

76  Pac.  408.  303,   9    So.   716;    State  v.    Sherman, 

"^Nugent   V.    State,    18    Ala.    521;  100  Iowa  684,  77  N.  W.  461;    State 


427  VARIANCE.  [§   3109. 

a  defense/^'"  although,  as  elsewhere  shown,  it  may  have  an  important 
bearing  upon  the  question  of  consent. 

§  3109.  Variance. — The  essential  elements  of  the  crime  should  be 
proved  substantially  as  laid.  WTiere  the  indictment  charges  a  rape 
upon  a  woman,  evidence  of  sexual  intercourse  with  a  child  under  the 
age  of  consent,  without  proof  that  it  was  by  force  and  without  her 
consent,  has  been  held  insufficient,  even  though  no  such  proof  would 
have  been  necessary  if  the  indictment  had  charged  rape  on  a  child 
under  the  age  of  consont.^^^  So,  it  has  been  held  that  proof  of  an 
assault  with  intent  to  rape  by  fraud  will  not  sustain  a  charge  of  com- 
mitting an  assault  with  intent  to  rape  by  force.^^-  But  this  would  not, 
perhaps,  be  held  imder  other  statutes.^^^  And  a  conviction  for  rape 
may  be  had  under  an  indictment  therefor  upon  proof  of  all  the 
essential  elements,  even  though  the  child  is  under  the  age  of  con- 
sent, and  intercourse  with  her  would  be  a  distinct  crime  if  she  had 
attempted  to  consent."* 

V.   Baskett,   111   Mo.    271,   19    S.   W.  "^poi-d  v.  State,  41  Tex.  Cr.  App. 

1097;     Edens    v.    Stata,     (Tex.    Cr.  270,  53  S.  W.  846. 

App.)   43  S.  W.  89;    Smith  v.  State,  ^^^  See,  State  v.   Austin,  109   Iowa 

44  Tex.  Cr.  App.  137,  68  S.  W.  995;  118,  80  N.  W.  303;   Mobley  v.  State, 

Commonwealth      v.      Murphy,      165  46  Miss.  501. 

Mass.  66,  42  N.  E.  504,  30  L.  R.  A.  "*  Rex  v.  Wedge,  5  Car.  &  P.  298; 

734.  Reg.   v.    Nicholls,   10   Cox   Cr.    Cas. 

^'"McQuirk  v.   State,   84  Ala.  435,  476;    Commonwealth   v.    Sugland,    4 

4   So.  775;    People  v.  Hartman,  103  Gray    (Mass.)    7;    State  v.  Gaul,  50 

Cal.  242,  37  Pac.  153;  Pratt  v.  State,  Conn.   578;    State  v.  Storkey,  63  N. 

19  Ohio  St.  277.  Car.  7;    State  v.  Staton,  88  N.  Car. 

1"  Greer  v.  State,  50  Ind.  267;  see  654;    Vasser  v.   State,   55   Ala.   264; 

also.  State  v.  Erickson,  45  Wis.  86;  State  v.  Worden,  46  Conn.  349,  362, 

Bishop    Stat.    Cr.,    §    487;    Dick    v.  33  Am.  R.  27. 
State,   30  Miss.  631;    State  v.  Jack- 
son, 30  Me.  29. 


CHAPTER  CL. 

RECEIVING  STOLEN  GOODS. 

Sec.  Sec. 

3110.  Meaning  of  term.  3116.  Character  evidence. 

3111.  Presumptions.  3117.  Identification  of  goods. 

3112.  Burden  of  proof.  3118.  Other    instances    of   receiving 

3113.  Burden     of     proof — Essential  stolen  goods. 

elements  and  material  facts.     3119.  Defenses. 

3114.  Knowledge    that    goods    were     3120.  Evidence  in  general. 

stolen.  3121.  Sufficiency  of  evidence. 

3115.  Intent  to  defraud. 

§  3110.  Meaning  of  term. — Eeceiving  stolen  goods  is  said  to  be 
the  short  name  usually  given  to  the  offense  of  receiving  any  goods 
or  chattels  with  the  knowledge  that  they  have  been  feloniously  or 
unlawfully  stolen,  taken,  extorted,  obtained,  embezzled  or  disposed 
of.^  But  in  some  states  the  offense  is  committed  only  in  case  the 
property  was  stolen.  And  a  receiver  of  stolen  property  has  been  de- 
fined as  "one  who  receives  into  his  possession  or  under  his  control, 
with  felonious  intent,  any  stolen  goods  or  chattels,  with  knowledge 
that  they  have  been  stolen."^  At  common  law  it  seems  that  while  sO' 
receiving  stolen  goods  may  have  been  a  misdemeanor  it  did  not  make 
the  receiver  accessory  to  the  theft.  It  is  now  made  a  substantive 
crime  in  England  and  some  states  by  statute,  and  in  a  few  others  the 
receiver  is  an  accessory  after  the  fact.^ 

§  3111.  Presumptions. — The  so-called  presumption  of  guilt  aris- 
ing from  the  recent  possession  of  stolen  property  has  been  held  to 
apply  to  one  charged  with  unlawfully  receiving  it  as  well  as  to 
one  charged  with  the  original  taking.*     But  it  is  not  conclusive,^ 

^Black's  L.  Diet.  State,  38  Fla.  3,  20  So.  765;  Curran 

=  24    Am.    &   Eng.    Ency.    of    Law     v.  State,   (Wyo.)   76  Pac.  577;   State 

(2d  ed.)  44.  v.  Hazard,  2  R.  I.  474,  60  Am.  Dec. 

^  See  for  remarks  on  the  history  of     96. 

the  offense  and  statutes,  Anderson  v.         *  People  v.  Weldon,  111  N.  Y.  569;. 

428 


429  PRESUMPTIONS  [§    3111. 

and  it  would  seem  that,  ordinarily,  the  presumption,  if  any,  other 
than  of  innocence,  would  be  that  of  larceny  ratlier  than  of  a  feloni- 
ous receiving  of  the  goods  knowing  them  to  be  stolen.®  Failure,  how- 
ever, by  one  in  possession  of  stolen  goods  to  make  a  reasonable  ex- 
planation has  been  held  sufficient  to  raise  a  presumption,  or  at  least 
an  inference  of  guilt. ^  But  where  a  reasonable  explanation  is  given 
it  is  held  that  no  such  inference  arises.^  When  the  circumstances  tend 
to  show  that  certain  stolen  goods  have  been  in  the  possession  of  the 
accused  for  a  long  time  before  their  discovery  it  has  been  held  that 
such  possession  may  raise  a  presumption  or  inference  of  guilt  against 
one  charged  with  receiving  them  though  such  goods  were  not  found 
until  more  than  three  montlis  after  they  were  stolen.''  It  has  been 
held  that  the  possession  by  a  person  of  stolen  property  recently  after 
the  theft  raises  a  presumption  that  he  stole  it,  but  the  mere  fact 
of  recent  possession  of  stolen  property,  by  a  person  who  is  charged 
with  receiving  stolen  property,  knowing  it  to  be  stolen,  does  not 
raise  a  presumption  tluit  he  had  knowledge  that  it  was  stolen. ^°  But 
recent  possession  in  connection  with  other  circumstances  of  a  peculiar 
and  suspicious  character  has  been  held  sufficient  to  warrant  a  pre- 
sumption, or  at  least  an  inference  of  guilty  knowledge,  if  it  may  rea- 
sona])ly  be  inferred  from  the  circumstances  that  the  one  in  possession 
of  the  goods  did  not  commit  tlie  larceny  himself.^^  But  the  mere 
purchase  of  stolen  goods  for  less  than  their  value  does  not  raise  a 
presumption  of  knowledge  that  they  were  stolen.^-  The  omission  of 
the  accused  to  testify  in  his  own  behalf,   creates  no  presumption 

19  N.  E.  279;  see  also,  Sahlinger  v.  firmed.    See   also,   Reg.   v.   Oddy,   5 

People,   102    111.    241,   244;    State   v.  Cox  Cr.  Cas.  210. 

Grebe,    17    Kans.    458;     Jenkins    v.  'Muggins  v.  People,   135   111.   243, 

State,  62  Wis.  49,  21  N.  W.  232.  25  N.  E.  1002,  25  Am.  St.  357;  State 

"State  V.  Pomeroy,  30  Ore.  16,  46  v.  Mayer,  45  Iowa  698;  State  v.  Mil- 

Pac.  797.  ler,  159  Mo.  113,  60  S.  W.  67. 

«See,  Durant  v.  People,  13  Mich.  •*  Williams  v.   State.  29  Tex.  App. 

351;    Sartorious   v.    State,    24    Miss.  167,  15  S.  W.  285;  Estes  v.  State,  23 

602;  State  v.  Bulla,  89  Mo.  595,  1  S.  Tex.  App.  600,  5  S.  W.  176. 

W.    764;    Trail   v.    State,    (Tex.    Cr.  "Jenkins  v.  State,  62  Wis.  49,  21 

App.)    57    S.    W.    92.     In,    State    v.  N.  W.  232. 

Richmond,   (Mo.)   84  S.  W.  880;  the  ^"  State  v.  Bulla,  89  Mo.  595,  1  S. 

case  of  State  v.  Guild,  149  Mo.  370,  W.  764. 

50  S.  W.  909,  73  Am.  St.  395,  which  "State    v.    Mayer,    45    Iowa    698; 

disapproved,   State   v.   Bulla,   supra,  Goldstein  v.   People,   82   N.  Y.   231; 

is   itself   disapproved,   and  the   doc-  Sartorious  v.  State,  24  Miss.  602. 

trine    of   the   older    case    again    af-  '•  Sartorious    v.    State,    24    Miss. 

60^. 


§§  3112,  3113.]      RECEIVING  STOLEN  GOODS.  430 

against  him,  yet  his  failure  to  account  in  any  way  for  his  possession 
of  a  large  sum  of  money  may  be  a  significant  circumstance  to  be 
considered  by  the  jury.^^  It  has  been  held  in  some  cases  that  the 
fact  that  the  accused  knew  the  goods  to  have  been  stolen  is,  in  the 
absence  of  other  evidence,  conclusive  proof  that  he  received  the  same 
with  intent  to  defraud  the  owner.^*  But  in  a  number  of  jurisdictions 
it  is  held  that  the  presumption,  if  any,  against  the  accused,  arising 
from  recent  possession  of  goods  is  that  the  possessor  is  guilty  of 
larceny  and  not  a  felonious  reception.^^ 

§  3112.  Burden  of  proof. — The  burden  or  proof,  as  in  other 
crimes,  is  on  the  prosecution  to  establish  the  guilt  of  the  accused.'^^ 
But  the  burden  of  showing  that  one  was  not  properly  convicted  as  a 
thief  is  upon  the  one  who  has  received  the  goods  when  the  record 
of  the  conviction  and  sentence  of  such  thief  is  introduced  in  evi- 
dence,^'^  if  that  question  can  be  gone  into  at  all.  The  general  rule, 
however,  is  that  the  burden  is  upon  the  prosecution  to  establish  every 
essential  element  of  the  crime  and  ultimately  convince  the  jury  of 
the  guilt  of  the  accused  beyond  a  reasonable  doubt. 

§  3113.     Burden  of  proof — Essential  elements  and  material  facts. 

The  essential  elements  of  the  crime  and  the  material  facts  to  be 
proved  by  the  state  are  in  general,  (1)  the  larceny  of  the  goods  by 
some  thief;  (2)  the  subsequent  reception  of  the  stolen  goods  by  the 
prisoner;  (3)  that  he  knew  at  the  time  that  they  were  stolen. ^^  Proof 
that  the  goods  were  actually  stolen  is  essential,  and  the  mere  posses- 
sion of  them  by  another  than  the  owner  has  no  tendency  in  itself,  it 
is  said,  to  prove  that  fact.^**  Neither  can  the  theft  be  proved  as  against 
a  person  charged  with  receiving  the  stolen  goods  by  the  confession  or 
declarations  of  the  thief.^°    The  fact  that  defendant  knew  the  goods 

"  Jenkins  v.  State,  62  Wis.  49,  21  goods    were,   in    fact,    stolen    goods. 

N.  W.  232.  State   v.    Kinder,   22    Mont.    516,    57 

"  United  States  v.  Lowenstein,  21  Pac.  94. 

D.  C.  515.  ^"Coxwell    v.    State,    66    Ga.    309; 

i^Sisk  V.    State,    (Tex.    Cr.   App.)  Cooper  v.  State,  29  Tex.  App.  8,  13 

42  S.  W.  985;  State  v.  Bulla.  89  Mo.  S.  W.  1011,  25  Am.  St.  712;  Ander- 

595,    1    S.    W.    764;     Sartorious    v.  son  v.  State,  63  Ga.  675. 

State,  24  Miss.  602;    People  v.  Wei-  ^^^  Reilley  v.  State,  14  Ind.  217. 

don,  111  N.  Y.  569,, 19  N.  E.  279.  "Bailey  v.  State,  52  Ind.  462. 

"Anderson   v.    State,    63   Ga.    675.  '"Reilley  v.  State,  14  Ind.  217. 
The     state     must     show    that    the 


431  KNOWLEDGE.  [§    3114. 

to  be  stolen  when  he  received  them  must  be  affirmatively  proved,^^ 
but  his  guilty  knowledge  raay.be  inferred  from  circumstances.^^  And 
the  fact  that  they  were  concealed  in  the  defendant's  house  in  places 
where  such  goods  would  not  ordinarily  be  kept  has  been  held  compe- 
tent evidence  of  guilty  knowledge.^^  It  has  also  been  held  in  some 
jurisdictions  that  it  must  also  be  shown  that  the  goods  were  received 
either  directly  or  indirectly  from  the  thief,-*  and  that  any  allegations 
as  to  the  identity  of  the  thief  must  l)e  proved  as  laid.-^  But  the  weight 
of  authority,  under  most  of  the  statutes,  is  to  the  effect  that  one  may 
be  guilty  of  receiving  stolen  goods,  although  he  receives  them  from 
some  person  other  than  the  person  who  committed  the  larceny,  and 
that,  if  it  is  properly  shown  that  they  are  stolen  goods,  and  the  other 
elements  of  the  crime  are  established,  the  name  of  the  thief  is  im- 
material.-" It  is  also  held  in  the  Wyoming  case  cited  in  support  of 
the  last  proposition  that  it  was  not  essential  that  the  larceny  should 
have  been  committed  in  that  state  if  the  stolen  goods  were  received 
there  with  guilty  knowledge. 

§  3114.  Knowledge  that  goods  were  stolen. — All  the  facts  and 
circumstances  from  wliich  the  inference  of  guilty  knowledge  arises 
are,  in  general,  competent  to  prove  such  knowledge.^''  It  may  be  in- 
ferred from  circum.stances  leading  a  reasonable  man  to  believe  that 
the  goods  were  stolen.-^     Thus,  the  fact  that  a  party  received  stolen 

=^  Robinson  v.  State,  84  Ind.  452;  "  Huggins  v.  People,  135   111.  243, 

Foster  v.  State,   106   Ind.  272,  6  N.  25  N.  E.  1002,  25  Am.  St.  357;   Peo- 

E.  641.  pie  v.  Schooley,  149  N.  Y.  99,  43  N. 

=- Goodman  v.   State,   141   Ind.   35,  E.  536,  aff'g  89  Hun   (N.  Y.)  391,  35 

39  N.  E.  939.  N.    Y.    S.    429;     Commonwealth    v. 

"Semon  v.  State,  158  Ind.  55,  62  Billings,    167    Mass.    283,    45    N.    E. 

N.  E.  625.  910;    Murio    v.    State,    31    Tex.    Cr. 

=^  Foster    v.    State,    106    Ind.    272,  App.   210,   20   S.  W.   356;    People  v. 

278,  6  N.  E.  641;    State  v. 'ives,  13  Clausen,  120  Cal.  381,  52  Pac.  658; 

Ired.  L.   (N.  Car.)   338.  Licette  v.  State,  75  Ga.  253;    State 

==  Foster  v.  State,  106  Ind.  272,  6  v.  Guild,  149  Mo.  370,  50  S.  W.  909 

N.  E.  641;   Semon  v.  State,  158  Ind.  (conduct  and  attempt  to  escape). 

55,  62  N.  E.  625.  -"Birdsong  v.    State,    (Ga.)    48   S. 

^''Curran  v.  State,  (Wyo.)  76  Pac.  E.  329;  Delahoyde  v.  People.  212  111. 

577;  Smith  v.  State,  59  Ohio  St.  350,  554,  72  N.  E.  732.    In,  Cobb  v.  State, 

52  N.  E.  826;  People  v.  Clausen,  120  76    Ga.    664,    it    is    said:     "Circum- 

Cal.    381,    52    Pac.    658;     Kirby    v.  stances  may  convict  of  the  defend- 

United  States,  174  U.  S.  47,  19  Sup.  ant's   knowledge,  as  well   as  actual 

Ct.  574;   State  v.  Fink,   (Mo.)    84  S.  and   direct   proof.     .     .     .     The   cir- 

W.  921;  Levi  v.  State,  14  Neb.  1,  14  cumstances,   the  time,   the   secrecy, 

N.  W.  543.  all   the  transactions  before,  at  the 


§  3114.]  RECEIVING  STOLEN  GOODS.  433 

goods  under  circumstances  which  would  induce  a  man  of  ordinary 
observation  to  believe  they  had  been  stolen,  and  also  concealed  them, 
has  been  held  competent  and  even  sufficient  evidence  to  show  guilty 
knowledge.2^  So,  evidence  that  accused  received  into  his  store,  at 
night,  goods  shown  by  the  evidence  to  have  been  stolen  from  persons 
who  were  suspicious  characters,  and  one  of  whom  he  knew  to  be  a  pro- 
fessional thief  has  been  held  sufficient  to  support,  in  this  respect,  a 
conviction  for  receiving  stolen  goods.^°  And  where  all  the  goods  were 
stolen  from  the  same  person  and  delivered  to  the  accused  by  the  thief, 
guilty  knowledge  may  be  shown  by  the  state  by  proving  other  prior 
acts  of  receiving,  and  that  other  stolen  goods  were  found  in  the  pos- 
session of  the  accused. ^^  And,  as  already  shown,  it  is  held  in  many 
jurisdictions  that  for  such  evidence  to  be  admissible  it  is  not  neces- 
sary that  the  stolen  goods  should  be  from  the  same  person  from 
whom  the  goods  in  question  were  received.^-  So,  it  has  been  hold 
that  guilty  knowledge  may  be  inferred  from  the  fact  that  the  ac- 
cused purchased  the  stolen  goods  for  much  less  than  their  real  value,^^ 
at  least  where  there  are  also  other  suspicious  circumstances.  Evi- 
dence that  the  accused,  a  dealer  in  second-hand  clothing,  according 
to  the  trade  custom,  did  not,  as  a  rule,  pay  full  price  for  clothing, 
and  bought  out  of  season  and  at  reduced  prices,  has  been  held  ad- 
time  and  afterwards,  may  be  ^"Friedberg  v.  People,  102  111.  160. 
brought  to  bear  upon  what  was  the  ^^  Harwell  v.  State,  22  Tex.  App. 
knowledge  of  the  receiver;  and  if  251,  2  S.  W.  606;  Copperman  v.  Peo- 
from  all  these  the  jury  can  conclude  pie,  56  N.  Y.  591;  State  v.  Habib,  18 
that  the  receiver  did  have  good  rea-  R.  I.  558,  30  Atl.  462;  State  v.  Ja- 
son, as  a  reasonable  person,  to  be-  cob,  30  S.  Car.  131,  8  S.  E.  698,  14 
lieve  or  suspect  that  the  goods  were  Am.  St.  897;  Goodman  v.  State,  141 
stolen,  they  may  well  conclude,  if  Ind.  35,  39  N.  E.  939. 
he  did  not  inquire  and  investigate  ^-  Goodman  v.  State,  141  Ind.  35, 
before  he  received  them,  that  he  had  39  N.  E.  939;  Morgan  v.  State,  31 
knowledge,  such  as  the  law  will  Tex.  Cr.  App.  1,  18  S.  W.  647;  see 
charge  him  with,  of  the  character  §  3111,  on  presumptions, 
of  the  goods,  and  of  the  person  ^^  Huggins  v.  People,  135  111.  243, 
from  whom  he  received,  as  one  who  25  N.  E.  1002,  25  Am.  St.  357;  Peo- 
had  stolen  them."  .  .  .  "Knowl-  pie  v.  Levlson,  16  Cal.  98,  76  Am. 
edge  may  well  be  deduced  from  con-  Dec.  505;  People  v.  Clausen,  120 
duct  and  behavior,  the  character  of  Cal.  381,  62  Pac.  658;  State  v.  Gold- 
the  person  from  whom  received,  man,  65  N.  J.  L.  394,  47  Atl.  641; 
and  the  kind  of  goods,  and  the  hour  State  v.  Houston,  29  S.  Car.  108,  6 
when  received."  S.  E.  943. 

-^Collins  V.  State,  33  Ala.  434,  73 
Am.  Dec.  426. 


433  INTENT.  [§   3115. 

missible  to  rebut  the  inference  of  guilty  knowledge  from  the  fact  that 
the  goods  were  bouglit  at  a  low  price.^*  It  has  been  held  that  the 
mere  fact  that  the  accused  did  not  attempt  to  prevent  the  owner  from 
recovering  his  goods  is  not  evidence  that  he  did  not  know  that  they 
were  stolen.^^  The  mere  fact  that  defendant  was  found  in  possession 
of  the  goods  has  been  held  insufficient  without  more,  to  establish  de- 
fendant's guilty  knowledge  that  the  goods  had  been  stolen.^®  But 
where  a  person  engaged  in  trade  is  found  in  possession  of  stolen  goods 
under  suspicious  circumstances,  and  states  that  lie  knows,  or  has  the 
means  of  ascertaining  the  person  from  whom  he  received  them,  but 
takes  no  steps  to  point  out  such  person,  this  has  been  held  a  fact  from 
which  the  jury  may  draw  the  inference  of  guilt. ^^  Evidence  of  sub- 
sequent receivings  has  been  held  inadmissible.^^  It  has  also  been 
held  that  proof  of  drunkenness  will  not  supjjort  an  averment  of  a 
want  of  guilty  knowledge  in  receiving  stolen  goods.^** 

'  §  3115.  Intent  to  defraud. — It  has  been  held  that  if  the  accused 
knew  when  he  received  tlie  goods  that  they  were  stolen,  the  intent  to 
defraud  the  owner  can  be  gathered  from  that  and  the  surrounding 
circumstances.*"  Thus,  it  has  been  held  that  where  one  holding  goods 
and  knowing  them  to  be  stolen,  offers  the  goods  for  sale  this  is  evi- 
dence of  his  guilty  intent.*^  But  under  most  of  the  statutes  there 
must  be  a  fraudulent  intent  to  deprive  the  true  owner  of  his  interest 
in  them.*-    Yet  it  has  been  held  that  receiving  stolen  goods,  knowing 

'♦Andrews  v.  People,  60  111.  354.  Berry  v.  State,  31  Ohio  St.  219,  227; 

='  People  v.  Solomon,  125  Cal.  xix,  Commonwealth  v.  Mason,  105  Mass. 

5S  Pac.  55.  163;    Reg.   v.   O'Donnell,   7    Cox   Cr. 

="  State  v.  Richmond,   (Mo.)   84  S.  Cas.  337. 
W.  880.  "Rice  v.  State,  3  Heisk.    (Tenn.) 

^^  Adams  v.  State,  52  Ala.  379.  215;  Pelts  v.  State,  3  Blackf.  (Ind.) 

^^  People  V.  Willard,  92  Cal.  482,  28  28;   see  also,  State  v.  Caveness,  78 

Pac.  585.  N.    Car.    484;    George    v.    State,    57 

=«  Commonwealth     v.     Finn,     108  Neb.    656,    78    N.    W.    259;    Holt    v. 

Mass.  466.  State,  86  Ala.  599,  5  So.  793;  People 

♦"United  States  v.  Lowenstein,  21  v.   Tilley,   135   Cal.    61,   67   Pac.   42; 

D.    C.    515,    519;    see    also.    State   v.  State  v.  Biirdon,  38  La.  Ann.   357; 

Smith,  88  Iowa  1,  55  N.  W.  16.  Arcia  v.  State,  28  Tex.  App.  193,  12 

"People  V.  Fletcher,  44  App.  Div.  S.  W.  509;  Hey  v.  Commonwealth,  32 

(N.   Y.)    199.   60   N.   Y.    S.   777.     So  Gratt.    (Va.)    946,    34   Am.    R.    799; 

held    where    taken    with    intent    to  State  v.  Shoaf,  68  N.  Car.  375    (in- 

hold  for  a  reward.    Baker  v.  State,  tent  for  jury) ;   People  v.  McClure, 

58  Ark.  513,  25  S.  W.  603;  see  also,  148  N.  Y.  95,  42  N.  E.  523;  Hurell  v. 

State    v.    Pardee,    37    Ohio    St.    63;  State,   5   Humph.    (Tenn.)    68;    but 
Vol.  4  Elliott  Ev.— 28 


§§    3116,    3117.]  RECEIVING   STOLEN   GOODS.  43-i 

them  to  be  stolen,  for  the  purpose  of  aiding  the  thief  in  concealing 
them  or  in  escaping  with  them,  is  as  much  an  offense  as  if  the  re- 
ceiving be  done  with  the  hope  of  obtaining  a  reward  from  the  owner 
or  other  pecuniary  gain  or  advantage.*" 

§  3116.  Character  evidence. — Evidence  of  the  good  character  of 
the  accused  has  been  held  competent.**  This  is  in  accordance  with 
the  general  rule.*^  But  in  some  jurisdictions  it  is  held  that  evidence 
of  good  character  is  not  competent  unless  the  other  evidence  in  the 
case  is  circumstantial  or  unless  the  guilt  of  the  accused  is  doubtful. *** 
Evidence  of  the  character  of  parties  who  frequented  defendant's  house, 
and  from  whom  he  received  goods,  has  been  held  competent,*^  as 
tending  to  show  his  knowledge  that  they  were  stolen.  So,  evidence 
of  the  reputation  of  the  thief  from  whom  he  received  the  goods  may 
be  admissible  for  the  same  purpose,*^  at  least  where  the  accused  is 
shown  to  have  knowledge  thereof.*^ 

§  3117.  Identification. — The  receipt  of  the  stolen  goods  by  the 
accused  must  be  shown,  and  in  order  to  do  this  they  must  be  identi- 
fied in  some  way.  It  has  been  held  proper  to  hand  to  the  witness 
articles  similar  to  those  stolen,  to  enable  him  to  identify  and  prove 
the  kind  of  articles  stolen.^"  And  it  has  been  held  that  all  the  cir- 
cumstances of  the  case  properly  bearing  upon  the  question  should  be 
taken  into  consideration  in  determining  the  question  as  to  the  receipt 

see,  State  v.  Lane,  68  Iowa  384,  27  ner  v.  State,  107  Ind.  71,  7  N.  E.  896, 

N.  W.  266;   Rex  v.  Davis,  6  Car.  &  57  Am.  R.  79;  Holland  v.  State,  131 

P.  177,  25  E.  C.  L.  381.  Ind.  568,  31  N.  E.  359. 

*^  People  V.  Wiley,  3  Hill   (N.  Y.)  "Hey  v.  Commonwealth,  32  Gratt. 

194;    State  v.   Rushing,   69    N.   Car.  (Va.)  946,  34  Am.  R.  799. 

29;     Commonwealth    v.    Bean,    117  "  Goodman  v.  State,  141  Ind.  35,  39 

Mass.  141;   State  v.  Hazard,  2  R.  I.  N.  E.  939;  Morgan  v.  State,  31  Tex. 

474;    Rex   v.   Richardson,   6    Car.   &  Cr.  App.  1,  18  S.  W.  647. 

P.  335,  25  E.  C.  L.  461.  ''  Huggins  v.  People,  135  111.  243, 

**  Jupitz  V.  People,  34  111.  516.  25  N.  E.  1002,  25  Am.  St.  357;  Com- 

*^  See,  People  v.  Hurley,  60  Cal.  74,  monwealth  v.  Gazzolo,  123  Mass.  220, 

44  Am.  R.  55;  State  v.  Ford,  3  Strob.  25  Am.  R.  79. 

L.  (S.  Car.)  517;  ante.  Vol.  I,  §  168.  "  Friedberg  v.  People,  102  111.  160; 
But  it  is  questionable  whether  such  State  v.  Goldblat,  50  Mo.  App.  186. 
evidence  of  itself  is  sufficient  to  re-  ^  Jupitz  v.  People,  34  111.  516.  But 
but  the  presumption  of  guilt,  where  mere  similarity  has  been  held  in  it- 
it  arises,  and  the  evidence  should  self  insufficient  evidence  of  identity, 
be  considered  in  connection  with  Commonwealth  v.  Billings,  167  Mass. 
the  other  evidence  in  the  case.  Wag-  283,  45  N.  E.  910. 


435  IDENTIFICATION OTHER   INSTANCES   OF   RECEIVING.       [§    3118. 

and  identification  of  the  stolen  property.^  ^  In  a  certain  case  papers 
produced  from  a  closet,  to  which  there  was  evidence  that  defendant 
had  access,  which  papers,  as  the  testimony  also  tended  to  show,  were 
wrappers  of  the  stolen  goods,  were  held  admissible  in  evidence.^^  And 
evidence  as  to  the  similarity  of  wrapping  paper  found  in  the  room  of 
the  accused,''^  or  as  to  the  use  of  certain  marks,^'*  has  been  held  com- 
petent. Thus  a  witness  may  testify  that  he  saw  the  goods  in  the  pos- 
session of  the  accused  and  knew  them  by  certain  marks.^^  And  evi- 
dence of  the  receiving  of  other  goods  has  been  held  admissible  to  aid 
in  the  identification  of  the  goods  in  qestion,  where  it  fairly  tended 
to  do  so.'^' 

§  3118.  Other  instances  of  receiving  stolen  goods. — Other  in- 
stances of  receiving  stolen  goods,  knowing  them  to  be  stolen,  may  be 
introduced^''  in  a  proper  case.  Thus,  to  prove  guilty  knowledge  it  may 
be  shown  that  the  accused  had  received  stolen  goods  on  another  oc- 
casion.^^  And  evidence  of  his  having  other  stolen  goods  in  his  pos- 
session has  also  been  held  competent  to  show  guilty  knowledge.^* 
"The  rule  as  to  such  evidence  is  that  when  there  is  a  question  whether 
a  person  said  or  did  something,  the  fact  that  ho  said  or  did  some- 
thing of  the  same  sort  on  a  different  occasion  may  be  proved,  if  it 
shows  the  existence  on  the  occasion  in  question  of  any  intention, 
knowledge,  good  or  bad  faith,  malice,  or  other  state  of  mind,  or  of  any 
state  of  body  or  bodily  feeling,  the  existence  of  which  is  in  issue  or  is 
deemed  to  be  relevant  to  the  issue:  but  such  acts  or  words  may  not 
be  proved  merely  in  order  to  show  that  the  person  so  acting  or  speak- 
ing was  likely,  on  the  occasion  in  question,  to  act  in  a  similar  man- 

"  People  V.  Kiley,  107  Mich.  345,  65  "  People  v.  McClure.  148  N.  Y.  95. 

N.  W.  233;  People  v.  Connor,  141  N.  42    N.    E.    523;    see    also.    State    v. 

Y.  583,  36  N.  E.  345;  Hester  v.  State,  Hanna,  35  Ore.  195,  57  Pac.  629. 

103  Ala.  83,  15  So.  857;   Jenkins  v.  "  Shriedley  v.   State,  23   Ohio  St. 

State,  62  Wis.  49,  21  N.  W.  232.  130;    Yarborough    v.    State,    41    Ala. 

"Commonwealth    v.    Mullen,    150  405;     Devoto    v.    Commonwealth,    3 

Mass.  394,  23  N.  E.  51.  Mete.  (Ky.)  417;  Goodman  v.  State. 

■^^Commonwealth    v.    Mullen,    150  141  Ind.  35,  39  N.  E.  939;  62  L.  R.  A. 

Mass.    394,    23    N.    E.    51;    Polin    v.  269,  317.  note. 

State,  (Tex.  Cr.  App.)  65  S.  W.  183.  ''State    v.    Ward,    49    Conn.    429; 

"  People  V.  Maloney,  113  Mich.  536,  Commonwealth  v.  Johnson,  133  Pa, 

71  N.  W.  866;   Hester  v.   State,  103  293.  19  Atl.  402. 

Ala.  83, 15  So.  857.  '"  Devoto     v.     Commonwealth,     S 

^=  Hester  v.  State,  103  Ala.  83,  15  Mete.  (Ky.)  417. 
So.  857. 


§    3118.]  RECEIVING  STOLEX  GOODS.  436 

ner."^**  The  facts  that  the  accused  received  from  another  articles 
stolen  by  him  from  a  third  person  in  the  course  of  several  months, 
and  that  the  accused  pledged  all  of  them,  are  deemed  to  be  relevant 
to  the  fact  that  the  accused  knew  that  the  goods  in  question  were 
stolen  by  the  other  from  the  third  person.®^  And  so,  evidence  that 
the  accused  persons  had  received  other  stolen  goods  than  those  de- 
scribed in  the  indictment  about  the  same  time,  and  stolen  from  the 
same  person,  has  been  held  competent,  as  tending  to  show  guilty 
knowledge  that  the  goods  in  question  were  stolen.^^  Evidence  of  pre- 
vious purchases  from  the  same  thief  of  goods  known  to  have  been 
stolen  is  admissible  to  show  guilty  knowledge  on  the  part  of  the  re- 
ceiver,^^  and  it  was  so  held  where  the  circumstances  of  the  previous 
dealing  were  suspicious  and  the  price  grossly  inadequate,®*  al- 
though the  property  was  stolen  from  different  persons.  So,  in  other 
cases  it  has  been  held  that  evidence  of  similar  transactions  of  the  ac- 
cused, other  than  those  connected  with  the  offense  charged,  may  be 
given  for  the  purpose  of  showing  guilty  knowledge,®^  and  that  evi- 
dence that  the  accused  has  frequently  received  similar  articles  of  prop- 
erty, under  like  circumstances,  from  the  same  thief,  stolen  from  the 
same  person  or  place,  knowing  that  they  were  stolen,  is  proper  upon 
the  question  of  guilty  knowledge.^®  And,  again,  it  is  held  that  evi- 
dence of  previous  transactions  between  accused  and  the  thief,  in  ref- 
erence to  other  stolen  property,  is  competent  to  show  knowledge  that 
the  goods  were  stolen. *''  Evidence  that  the  supposed  thief  had  stolen 
other  goods  of  the  same  kind  has,  however,  been  held  not  to  be  com- 
petent.®** And  the  fact  that  the  accused  received  property  on  other 
occasions  from  still  other  persons,  knowing  it  to  have  been  stolen,  was 
held  in  one  case  not  to  be  relevant,®^  where  the  property  was  different 

*>  Stephen  Dig.,  Art.  11.  ^^  Coleman  v.   People,   1   Hun    (N. 

«^  Coleman  v.  People,  58  N.  Y.  555;  Y.)  596,  4  Thomp.  &  C.  (N.  Y.)  61. 

State  V.  Ward,  49  Conn.  429;  Kilrow  "^  Copperman  v.  People,   56  N.  Y. 

V.   Commonwealth,   89   Pa.    St.   480;  591. 

Shriedley  v.  State,  23  Ohio  St.  130.  «'  State    v.    Feuerhaken,    96    Iowa 

"  State  v.  Jacob.  30  S.  Car.  131,  8  299,  65  N.  W.  299. 

S.  E.  698,  14  Am.  St.  897.  «' Mclntire  v.  State,  10  Ind.  26;  see 

«« Shriedley  v.   State,  23  Ohio  St.  also,  Reg.  v.  Oddy,  5  Cox  Cr.  Cas. 

130;  People  v.  McClure,  148  N.  Y.  95,  210. 

42  N.  E.  523;   People  v.  Grossman,  «*  Coleman  v.  People,  55  N.  Y.  81; 

168  N.  Y.  51,  60  N.  E.  1050.  see  also,  Reg.  v.  Oddy,  5  Cox  Cr.  Cas. 

"  People  V.  Doty,  175  N.  Y.  164,  67  210. 
N.  E.  303. 


437  DEFENSES.  [§§  3119,  3120. 

in  kind,  and  was  stolen  from  a  difTorcnt  person  and  received  from  a 
different  person. 

§  3119.  Defenses. — If  the  goods  are  received  in  good  faith  on  be- 
half of  the  owner  with  the  honest  intention  and  purpose  of 
delivering  them  to  him  without  reward,  and  they  are  so  restored, 
this  will  constitute  a  good  defense.'"  The  prosecution  may  also  be 
barred  by  the  statute  of  limitations.'^^  And  a  former  acquittal  may 
constitute  a  good  defense,'^  ^^t  an  acquittal  of  breaking  into  a  house 
with  intent  to  steal  and  taking  goods  therefrom  is  not  a  bar  to  a  prose- 
cution for  receiving  stolen  goods."  What  the  accused  said  on  the 
discovery  of  the  goods  with  him  has  been  held  admissible  in  his  favor, 
if  made  instantaneously  and  without  opportunity  for  concoction,  as 
a  part  of  the  res  gestae.''^  And  so  it  has  been  held  competent  for  the 
defense  to  show  by  the  accused,  he  being  a  witness  in  his  o\ra  be- 
half, when,  from  whom,  how,  and  under  what  circumstances  he  re- 
ceived the  property  and  what  was  done  and  said  at  the  time  in  con- 
nection with  the  receipt  of  it  by  himself ;  such  facts  being  part  of  the 
res  gestae  to  be  submitted  as  evidence,  and  weighed  by  the  jury."  Evi- 
dence that  the  vendor  of  the  goods  in  question  claimed  the  same  as 
his  own  before  the  sale  to  the  accused,  is  properly  admissible  in  de- 
fense.'^''  And  it  has  been  held  that  a  dealer  in  second-hand  goods 
may  show  the  custom  not  to  pay  a  full  price  for  goods  which  they  deal 
in,  even  though  practically  new,  in  order  to  rebut  the  presumption  or 
inference  of  guilty  knowledge  from  the  purchase  of  such  goods  at  a 
greatly  reduced  price." 

§  3120.  Evidence  in  general. — Evidence  is  admissible  against  the 
accused  of  conversations  between  the  defendant  and  the  thief,  mak- 
ing arrangements  for  recei^^ng  the  goods,  before  the  offense  was  com- 
mitted.'^^ And  conversations  between  the  accused  and  the  thief  on 
previous  occasions,  when  the  accused  received  similar  goods  from  the 

^"Aldrichv.  People,  101  111.  16.  Payne  v.   State.   57   Miss.   348;    Mc- 

"  Jones  v.  State,  14  Ind.  346.  Phail  v.  State,  9  Tex.  App.  164. 

"People  V.  Willard,  92  Cal.  482,  28  "=  State  v.  Bethel,  97  N.  Car.  459,  1 

Pac.  585.  S.  E.  551. 

"  Pat  v.  State,  116  Ga.  92,  42  S.  E.  "  Harwell   v.   State,   22   Tex.  App. 

a89;    Commonwealth  v.   Bragg,   104  251.  2  S.  W.  606. 

Ky.  306,  47  S.  W.  212.  "  Andrews  v.  People,  60  111.  354. 

•*  Bennett  v.   People,   96    111.   602;  '"Commonwealth    v.    Jenkins,    10 

Henderson    v.    State,    70    Ala.    23;  Gray  (Mass.)  1S5. 


§  3120.]  RECEIVING  STOLEN  GOODS.  438 

thief,  have  also  been  held  competent  to  show  guilty  knowledge.''^  And 
60  conversations  between  the  thieves  before  and  after  the  commission 
of  the  theft  may  be  admissible  to  show  how  it  was  planned  and  ac- 
complished.*" And  if  it  is  shown  that  there  was  a  fraudulent  con- 
spiracy between  those  who  stole  the  goods  and  the  one  who  received 
the  goods  to  sell  or  dispose  of  them,  it  has  been  held,  as  in  other  cases 
of  conspiracy,  that  the  acts  or  statements  of  one  of  the  conspirators 
in  reference  to  the  undertaking,  even  in  the  absence  of  the  accused, 
are  competent  against  the  accused  if  made  before  the  property  is  dis- 
posed of.*^  It  has  been  held  that  the  declaration  of  the  one  holding 
the  property  that  he  received  it  from  another  may  be  taken  as  suffi- 
cient proof  that  he  received  it  from  the  thief  rather  than  that  he  him- 
self stole  it.*2  Evidence  that  defendant  also  had  other  stolen  prop- 
erty of  the  same  kind  in  his  possession  is  admissible,^^  in  a  proper 
case,  but  evidence  that  the  thief  from  whom  the  defendant  received 
the  property  had  also  been  guilty  of  another  theft  is  inadmissible.^* 
Wliere  the  defendant  was  charged  with  receiving  stolen  goods  during 
the  continuance  of  a  partnership  of  which  he  was  a  member,  the  ex- 
clusion of  a  bill  shoM'ing  a  sale  of  goods  to  the  defendant  by  the  al- 
leged owner  of  the  stolen  goods  after  the  firm  had  been  dissolved  was 
held  to  be  proper.*^  For  the  purpose  of  showing  that  the  property 
was  stolen  before  defendant  was  found  in  possession  of  it,  an  indict- 
ment charging  another  with  the  theft  of  the  property,  and  a  judgment 
of  conviction  of  said  person  for  such  theft,  have  been  held  admis- 
sible.*^ But  an  acquittal  of  the  alleged  thief  has  been  held  no  de- 
fense to  the  receiver.*^  The  failure  of  a  junk  dealer  to  keep  a  book, 
as  required  by  law,  wherein  all  articles  purchased  by  him  are  to  be 
entered,  it  has  been  held,  may  be  shown  in  a  prosecution  against  him 
for  receiving  stolen  property.*®  There  is  a  diversity  of  opinion  in 
the  adjudicated  cases  as  to  whether  the  thief  is  an  accomplice 
making  it  necessary  under  the  statutes  that  his  testimony  should  be 

'"Copperman  v.  People,  1  Hun  (N.  "  Mclntire  v.  State,  10  Ind.  26. 

y.)  15.  8=  Delahoyde  v.  People,  212  111.  554, 

*<•  State  V.  Smith,  37  Mo.  58.  72  N.  E.  732. 

"People  V.  Pitcher,  15  Mich.  397;  «« Cooper  v.  State.  29  Tex.  App.  8, 

McFadden  v.  State,  28  Tex.  App.  241,  13  S.  W.  1011,  25  Am.  St.  712. 

14  S.  W.  128.  "  State   v.    Sweeten,   75    Mo.   App. 

^^'Gunther  v.  People,  139  111.  526,  28  127. 

N.  E.  1101.  *  Commonwealth  v.   Leonard,  140 

**  Turner  v.  State,  102  Ind.  425,  1  Mass.  473,  4  N.  E.  96,  54  Am.  R.  485. 
N.  E.   869;    Goodman  v.   State,  141 
Ind.  35,  39  N.  E.  939. 


439  EVIDENCE    IN    GENERAL.  [§    3120. 

corroborated  in  order  that  the  accused  may  be  convicted.  Some  juris- 
dictions hold  that  the  thief  is  not  an  accomplice,^®  while  some  other 
jurisdictions  take  the  opposite  view.®"  And  it  has  been  held  that  it 
is  a  question  of  fact  for  the  jury.'*^  Thus,  it  has  been  held  error  to  al- 
low the  jury  to  convict  on  the  uncorroborated  testimony  of  the  thief, 
without  leaving  to  them  to  find  whether  such  witness  was  not  in  fact 
an  accomplice  of  the  accused,  so  as  to  require  his  testimony  to  be  cor- 
roborated.®^ The  matter  depends  largely  upon  the  statute  of  the  par- 
ticular jurisdiction.  The  testimony  of  the  one  who  stole  the  goods 
is  competent  against  the  one  who  received  them.®^  And  the  owner 
of  the  stolen  property  is  a  competent  witness.®*  It  has  been  held  that 
the  owner  of  the  property  may  state  what  the  value  of  the  property 
was  to  him,  as  that  is  a  fact  slightly  tending  to  show  its  real  value.®' 
Wliere  the  defendant  was  accused  of  receiving  stolen  goods,  and  it  was 
established  that  he  went  to  a  certain  house  and  got  a  particular  pack- 
age of  the  goods,  evidence  of  a  witness  that  defendant  "knew  it  was 
there"  was  held  not  objectionable  as  a  conclusion.®®  The  confession 
of  the  accused  is  admissible.®^  It  should  be  remembered,  however, 
that  the  confession  should  be  made  voluntarily.®^  And,  as  elsewhere 
shown,  corroboration  may  be  required.  Evidence  of  the  kind  of  shop 
kept  and  conducted  by  the  accused  has  been  held  admissible  to  inform 
the  jury  of  his  habitual  occupation  and  hence  the  opportunity  to  com- 
mit the  crime.®®  But  it  has  been  held,  on  the  other  hand,  that  evi- 
dence that  the  house  of  the  accused  is  the  resort  of  felons,  who  resort 
there  to  dispose  of  stolen  goods  is  not  admissible.^'^'^  Eecent  posses- 
sion, without  any  evidence  that  the  property  stolen  had  been  in  the 

»^  Springer  v.  State,   102   Ga.   447,  "  Gassenheimer  v.   State,   52   Ala. 

30  S.  E.  791;  State  v.  Kuhlman,  152  313. 

Mo.  100,  53  S.  W.  416,  75  Am.  St.  438.  "  Cohen  v.  State,  50  Ala.  108. 

""  State  V.  Greenburg,  59  Kans.  404,  "'  Delahoyde  v.  People,  212  111.  554, 

53  Pac.  61;  Commonwealth  v.  Poots,  72  N.  E.  732. 

18    Phila.     (Pa.)     477;    Johnson    v.  "People  v.   McKennan,   35   N.   Y. 

State,  42  Tex.  Cr.  App.  440,  60  S.  W.  St.   938,   12   N.   Y.    S.   493;    State  v. 

667.  Hahib,  18  R.  I.  558,  30  Atl.  462. 

"  People  V.  Kraker,  72  Cal.  459,  14  "«  State  v.  Davis,  125  N.  Car.  612, 

Pac.  196,  1  Am.  St.  65.  34  S.  E.  198. 

^'  People  V.  Kraker,  72  Cal.  459,  14  '"'  Commonwealth  v.  Campbell,  103 

Pac.  196,  1  Am.  St.  65.  Mass.  436. 

"^People  V.  Levison,  16  Cal.  98,  76  '""People   v.    Pierpont,   1   Wheeler 

Am.    Dec.    505;    People    v.    Cook,    5  Cr.  Cas.   (N.  Y.)    139.    But  it  might 

Park.  Cr.  Cas.  (N.  Y.)  351;  State  v.  be  admissible  as  already  shown,  in  a 

Coppenburg,   2   Strob.   L.    (S.   Car.)  proper    case,    on    the    question    of 

273.  guilty  knowledge. 


§  3121.]  RECEIVING  STOLEN  GOODS.  440 

possession  of  some  person  other  than  the  owner  before  it  came  to  the 
alleged  receiver,  or  other  circumstances  to  rebut  the  presumption  of 
larceny  has  been  held  to  be  evidence  of  larceny  rather  than  evidence 
of  receiving  stolen  goods.^°^ 

§  3121.  Sufficiency  of  evidence. — The  bare  fact  of  receiving- 
stolen  goods  is  not  sufficient  to  show  knowledge  on  the  receiver's  part 
that  the  goods  were  stolen."^  And  proof  that  the  accused  had  in  his 
possession  property  twelve  months  after  it  was  stolen  will  not  sustain 
a  conviction  for  receiving  stolen  property,  where  there  is  no  evidence 
that  the  accused  knew  it  to  have  been  stolen."^  It  has  been  held^ 
however,  that  one  may  be  convicted  of  receiving  stolen  money  upon 
evidence  showing  his  poverty  previous  to  the  larceny,  and  that  shortly 
thereafter  he  was  in  the  unexplained  possession  of  a  large  amount 
of  currency,  although  such  currency  is  not  specifically  identified  with 
that  which  was  stolen."*  So,  where  the  accused  was  charged  with, 
receiving  a  stolen  watch,  and  admitted  that  after  the  theft  he  had  sold 
a  watch  of  the  same  number  as  the  stolen  watch,  such  evidence  was 
held  sufficient  to  show  that  the  stolen  watch  had  been  in  his  posses- 
sion."^ In  a  recent  case  in  New  York  one  who  had  stolen  money 
took  it  to  a  bank,  the  defendant  going  with  him,  and  delivered  it  to 
the  bank  teller  to  count.  While  it  was  being  counted,  the  defendant,, 
at  the  instance  and  with  the  consent  of  the  thief,  made  out  a  deposit 
slip  for  the  money  to  his  own  credit,  which  was  received  with  the 
money,  the  money  being  placed  to  the  defendant's  credit  in  the  bank, 
and  the  court  held  that  this  constituted  receiving  stolen  money,  which, 
being  with  knowledge  that  it  was  stolen,  was  a  crime  under  the  New 
York  statute.  ^*"^  So,  where  the  defendant,  knowing  goods  to  have 
been  stolen,  put  part  of  them  in  his  bag  and  helped  the  thief  carry 
them  to  a  merchant  to  sell,  this  was  held  sufficient  to  sustain  a  charge 
of  receiving  stolen  goods. "^    It  has  also  been  held  that  on  a  charge  of 

^°'Reg.   V.    Langmead,    9    Cox    Cr.  "^Jenkins  v.  State,  62  Wis.  49,  21 

Cas.  464.  N.  W.  232. 

^°-  Castleberry  v.  State.  35  Tex.  Cr.  '"'■  Gunther  v.  People,  139  111.  526, 

App.  382,  33  S.  W.  875,  60  Am.  St.  53.  28  N.  E.  1101. 

But  there  are  usually  other  circum-  ""  People  v.  Ammon,  92  App.  Div. 

stances  or  the  possession  may  be  so  (N.  Y.)  205,  87  N.  Y.  S.  358,  aff'd  in, 

recent  that  knowledge   may   be   in-  71  N.  E.  1135. 

ferred  under  the  circumstances.  '"'  State  v.  Rushing,  69  N.  Car.  29. 

"^Tolliver  v.  State,  25  Tex.  App.  But  this  comes  close  to  the  line  of 

600,  8  S.  W.  806.  larceny  or  aiding  and  abetting  the 


441  -     SUFFICIENCY    OF    EVIDENCE.  [§    3121. 

receiving  stolen  goods  belonging  to  a  corporation,  it  is  sufficient  to 
prove  that  they  were  owned  by  a  corporation  de  facto.^**®  But  v/here 
the  indictment  charged  the  receipt  of  a  certain  number  of  ounces  of 
silver,  knowing  it  to  have  been  stolen,  and  the  proof  was  that  the 
silver  had  been  so  far  manufactured  into  the  form  of  forks  and 
spoons  as  to  bear  a  resemblance  at  least  to  the  finished  product,  and 
these  forms  were  distinctively  known  as  fork  blanks  and  spoon  blanks, 
it  was  held  that  the  evidence  did  not  sustain  the  indictment.^"'* 

same.  See,  Reg.  v.  Coggins,  12  Cox  '«« State  v.  Nelson,  27  R.  I.  31,  60 
Cr.  Cas.  517;  Smith  v.  State,  59  Ohio  Atl.  589.  Compare  Reg.  v.  Mansfield, 
St.  530,  52  N.  E.  826.  Car.  &  Mar.  Rep.  140. 

"« Butler  V.  State,  35  Fla.  246,  17 
So.  551. 


CHAPTER  CLI. 

RIOTS    AND    UNLAWFUL    ASSEMBLIES. 

Sec.  Sec. 

3122.  Meaning  of  terms.  3xiJ6.  Proof  as  to  participation. 

3123.  Presumptions   and    burden    of     3127.  Proof  as  to  terror  of  the  peo- 

proof.  pie. 

3124.  Order  of  proof.  3128.  Evidence  in  general. 

3125.  Number    of    persons    at    least 

three. 

§  3122.  Meaning  of  terms. — A  riot  is  defined  as  a  "tumultuous 
disturbance  of  the  peace  by  three  persons  or  more  assembling  together 
of  their  own  authority,  with  an  intent  mutually  to  assist  each  other 
against  any  who  shall  oppose  them  in  the  execution  of  some  enter- 
prise of  a  private  nature,  and  afterward  actually  executing  the  same 
in  a  violent  and  turbulent  manner,  to  the  terror  of  the  people,  whether 
the  act  intended  were  of  itself  lawful  or  unlawful."^  An  unlawful  as- 
sembly at  common  law  is  the  meeting  together  of  three  or  more  per- 
sons, to  the  disturbance  of  the  public  peace,  and  with  the  intention 
of  co-operating  in  the  forcible  and  violent  execution  of  some  unlaw- 
ful private  enterprise.  If  they  take  steps  toward  the  performance  of 
their  purpose  it  becomes  a  rout,  and  if  they  put  their  design  into 
actual  execution  it  is  a  riot.-  If  they  part  without  doing  it  and  with- 
out taking  such  steps  it  is  merely  an  unlawful  assembly.^  Again,  riot 
has  been  defined  as  a  tumultuous  disturbance  of  the  peace,  by  three 
or  more  persons  assembling  together  of  their  own  authority,  with  an 
intent  to  assist  one  another  against  any  one  who  shall  oppose  them  in 
the  execution  of  some  enterprise  of  a  private  nature,  and  afterward 
actually  executing  the  same  in  a  violent  and  turbulent  manner,  to 
the  terror  of  the  people,  whether  the  act  itself  be  lawful  or  unlawful.'' 
Under  the  Georgia  statute,  which  provides  that  if  two  or  more  per- 

'  Black's  L.  Diet.  Cr.  Law.    As  to  riotous  conspiracy 

=  Black's  L.  Diet.  see.  Spies  v.  People,  122  111.  1,  12  N. 

=  3  Greenleaf  Ev.,  §  216.  E.  865,  3  Am.  St.  320,  and  note. 

*  State  V.  Russell,  45  N.  H.  83;  May 

443 


443  PRESUMPTIONS  AND   BUKDEX   OF   PROOF.  [§    3123. 

sons  do  an  unlawful  act  of  violence  or  any  other  act  in  a  violent  and 
tumultuous  manner,  they  shall  be  guilty  of  a  riot,  it  is  held  that  there 
must  be  concert  of  action  on  the  part  of  such  persons  in  furtherance 
of  a  common  intent,^  but  that  while  there  must  be  a  common  intent 
on  the  part  of  two  or  more  persons  to  do  an  unlawful  act,  and  also 
concert  of  action  in  furtherance  of  such  intent,  it  is  not  necessary  that 
there  must  have  been  a  previous  plot  on  the  part  of  the  rioters  in 
order  to  constitute  such  offense.*^  In  Indiana  it  has  been  held  unneces- 
sary to  prove  that  the  defendants  were  engaged  in  doing  an  act  which 
of  itself  was  unlawful.*^  And  in  the  same  state  it  is  also  held  that  the 
violent  and  tumultuous  manner  in  which  the  act  is  done  is  the  essence 
of  the  offense,  and  gathering  together  in  a  crowd  for  the  purpose  of 
giving  a  newly  wedded  couple  a  charivari,  and  making  a  great  noise 
by  shouting,  shooting  off  firearms,  blowing  horns  and  beating  on  tin 
pans  may  constitute  a  riot,^  although  all  the  rioters  were  in  a  good 
humor,^  and  it  is  not  necessary  to  show  that  anybody  was  terrified  by 
the  tumult.^" 

§  3123.  Presumptions  and  burden  of  proof. — It  has  been  held 
that  the  mere  fact  that  three  or  more  persons  in  a  violent  manner  beat 
another  does  not  raise  the  presumption  of  law  that  they  assembled 
with  that  intent,  or,  after  being  assembled,  agreed  mutually  to  assist 
one  another  in  executing  such  purpose.^^  But  from  the  doing  of  the 
act,  accompanied  by  declarations  of  an  intent  to  do  it,  the  jury  may 
infer  a  previous  intent  and  agreement  to  do  it,  and  mutually  to  assist 
each  other  in  doing  it ;  and  it  is  said  that  in  the  absence  of  all  contra- 

"  Coney  v.  State,  113  Ga.  1060,  39  State,  20  Ga.  839;  Reg.  v.  Cunning- 

S.  E.  425;   Stafford  v.  State,  93  Ga.  hame,  16  Cox  Cr.  Cas.  420,  427. 

207,  19  S.  E.  50;  Prince  v.  State,  30  » Bankus  v.  State,  4  Ind.  114;  State 

Ga.  27.    It  is  also  said  that  the  mere  v.  Brown,  69  Ind.  95. 

making  of  a  noise  will  not  constitute  *  Bankus  v.  State,  4  Ind.  114. 

a   riot  in  the  absence   of  violence.  '"Bankus    v.    State,    4    Ind.    114; 

Barron  V.  State,  74  Ga.  833.  Thayer  v.   State,   11   Ind.   287;    see 

'Jemley  v.  State,    (Ga.)   49  S.  E.  also.  Commonwealth  v.  Runnels,  10 

292.  Mass.  518;    People  v.  O'Loughlin,  3 

^Kiphart  v.  State,  42  Ind.  273;  see  Utah  133,  1  Pac.  653  (strikers  march- 
also.  State  v.  Voshall,  4  Ind.  589;  ing  through  street  held  rioters); 
State  v.  Dillard,  5  Blackf.  (Ind.)  Darst  v.  People,  51  111.  286;  State  v. 
365;  People  v.  O'Loughlin,  3  Utah  York,  70  N.  Car.  66;  State  v.  Boies, 
133,  1  Pac.  653;  State  v.  Blair,  13  34  Me.  235. 
Rich.    L.    (S.    Car.)    93;    Jacobs   v.  "  State  v.  Kempf,  26  Mo.  429. 


§    3124.]  RIOTS    AND    UNLAWFUL    ASSEMBLIES.  444 

dictory  evidence  they  ought  so  to  infer.^^  ^nd  it  is  held  that  proof 
of  an  agreement  or  proposal  to  do  the  unlawful  act  need  not  be 
made/3  and  that  it  is  sufficient  if  there  is  a  common  intent  or  pur- 
pose and  concert  of  action  without  any  previous  plot."  The  burden 
of  proof  is  on  the  prosecution  to  establish  that  at  least  three  persons 
were  engaged  in  the  unlawful  act.^^  And  the  burden  of  proof  is  gen- 
erally on  the  prosecution  to  establish  an  unlawful  assembly.  But  an 
assembly  that  might  not  have  been  unlawful  in  the  first  instance/^ 
if  it  had  been  properly  conducted,  may  become  unlawful."  It  has 
also  been  held  that  it  must  be  shown  that  the  object  of  the  rioters 
was  of  a  private  nature/^  and  the  common  intent  or  purpose  must 
be  shown/^  but  it  may  be  inferred  from  conduct  and  other  circum- 
stantial evidence.^" 

§  3124.  Order  of  proof. — In  proving  the  guilt  of  the  defendants,, 
says  Greenleaf,  "the  regular  and  proper  order  is  similar  to  that  which 
is  adopted  in  prosecutions  for  conspiracy ;  namely,  jfirst  to  prove  the 
combination,  and  then  to  show  what  was  done  in  pursuance  of  the  un- 
lawful design."  But  this  rule  is  not  imperative,  and  the  court,  in  its 
discretion  may  admit  evidence  out  of  its  usual  and  regular  order.^^ 

"United    States    v.    Stockwell,    4  v.   Snow,  18  Me.  346;    Lycoming  F, 

Cranch  (U.  S.)  671.  Ins.  Co.  v.  Schwenk,  95  Pa.  St.  89,  40 

"United    States    v.    Stockwell,    4  Am.  R.  629;  State  v.  Cole,  2  McCord 

Cranch  (U.  S.)  671;  United  States  v.  L.   (S.  Car.)   117,  120;   Blackwell  v. 

Fenwick,  4  Cranch  (U.  S.)  675.   But  State,  30  Tex.  App.  672,  18  S.  W.  676; 

there  must  be  a  common  purpose  of  see,  Commonwealth  v.  Martin,  7  Pa. 

doing  it.    Aron  v.  Wausau,  98  Wis.  Dist.  219. 

592,  74  N.  W.  354.  ''  Douglass     v.     State,     6     Yerg, 

"Jemley  v.  State,   (Ga.)   49  S.  E.  (Tenn.)  525;  3  Greenleaf  Ev.,  §  220. 

292.  "See,   State   v.   McBride,   19   Mo. 

"Commonwealth  v.  Berry,  5  Gray  239;  State  v.  Kempf,  26  Mo.  429; 
(Mass.)  93;  State  v.  Bailey,  3  Dixon  v.  State,  105  Ga.  794,  31  S.  E. 
Blackf.  (Ind.)  209;  3  Greenleaf  Ev.,  750;  Aron  v.  Wausau,  98  Wis.  592,  74 
§§  216,217.  Two  or  more  under  the  N.  W.  354;  Commonwealth  v.  Gib- 
Georgia  statute.  ney,  2  Allen  (Mass.)  150. 

^^Commonwealth   v.    Runnels,    10  ="  Commonwealth     v.     Gibney,     2 

Mass.  518;   State  v.  Stalcup,  1  Ired.  Allen  (Mass.)  150;  United  States  v. 

L.   (N.  Car.)    30,  35  Am.  Dec.  732;  Stockwell,   4    Cranch    (U.   S.)    671; 

Reg.  V.  Soley,  2  Salk.  594,  11  Mod.  United  States  v.  Fenwick,  4  Cranch 

115;  but  see,  Dougherty  v.  People,  5  (U.  S.)  675. 

111.  179.  =13  Greenleaf  Ev.,  §  221;  see  also, 

"United   States   v.   McFarland,   1  Nicholson's  Case,  1  Lewin  C.  C.  300; 

Cranch   (U.  S.)   140;   State  v.  John-  1  East  P.  C.   96.  §   37;    Redford  v. 

son,  89  Iowa  594,  57  N.  W.  302;  State  Birley,  3  Stark.  76. 


445  NUMBER   OF    PERSONS — PARTICIPATION.       [§§    3125,    3126. 

§  3125.  Number  of  persons,  at  least  three. — It  must  be  proved 
that  least  three  persons  were  engaged  in  the  unlawful  act.-^  Other- 
wise the  offense  is  not  made  out."  So  it  has  been  held  that  if  the  evi- 
dence extends  only  to  one  or  two  persons,  all  the  defendants  must  be 
-acquitted  of  the  charge  of  riot,  though  the  act  proved  against  one  or 
two  might  be  an  assault  or  some  similar  offense.-*  Thus,  it  has  been 
held  that  riot  is  a  joint  offense,  and  that  the  evidence  must  show  that 
at  least  three^^  of  the  persons  charged  participated  in  the  alleged  riot, 
or  none  of  them  can  be  convicted.^*^  It  has  been  held  not  enough  to 
prove  that  persons  not  indicted  for  the  riot  took  part  in  it."  But  in 
the  same  jurisdiction  where  the  indictment  charged  the  defendants, 
and  other  persons  to  the  grand  jury  unknown,  with  having  committed 
a  riot,  proof  that  defendants  and  unknown  persons  to  the  number  of 
three  participated  in  the  offense  was  held  sufficient  to  justify  a  convic- 
tion of  the  defendants.^® 

§  3126.  Proof  as  to  participation. — Participation  by  persons  pres- 
ent at  an  unlawful  aesembly  may  generally  be  proved  by  evidence  of 
their  presence,  and  any  conduct  on  their  part  indicating  that  they 
adopted  the  language  and  conduct  of  the  others  or  were  under  the 
influence  of  similar  sentiments. ^^  Evidence  of  a  refusal  to  obey  a 
lawful  order  to  disperse  is  regarded  as  showing  participation,  because 
the  mere  presence  of  persons  in  an  unlawful  assembly  encourages  and 
strengthens  those  who  are  actively  bent  on  mischief  .^^^  It  will  be  suf- 
ficient to  establish  the  guilt  of  any  defendant,  if  it  be  shown  that  he 
joined  himself  to  the  others  after  the  riot  began,  or  encouraged  them 
or  otherwise  took  part  in  their  proceedings.^^  It  is  not  necessary  to 
establish  that  when  the  parties  first  met  they  assembled  unlawfully, 
for  an  originally  lawful  assemblage  may  be  converted  into  a  riot.^- 

==  Commonwealtli  v.  Berry,  5  Gray  (Ind.)    72;    Hardebeck  v.   State,   10 

(Mass.)    93;   Rex  v.  Sudbury,  1  Ld.  Ind.  459. 

Raym.   484;    Rex  v.    Scott,   3   Burr.  "  Hardebeck  v.  State,  10  Ind.  459. 

1262.    Two  in  Georgia.    Stafford  v.  =^  Turpin  v.  State,  4  Blackf .  (Ind.) 

State,  93  Ga.  207.  72. 

"  State  V.  Bailey,  3  Blackf.  (Ind.)  =^  People  v.  Most,  128  N.  Y.  108,  27 

209.  N.  E.  970,  26  Am.  St.  458. 

"State  v.  Kuhlmann,  5  Mo.  App.  =°  Riots  of  1844,  In  re,  2  Pa.  L.  J. 

588;     Turpin    v.     State,     4     Blackf.  275.  279.  4  Pa.  L.  J.  29,  32. 

(Ind.)  72.  ''People   v.   White,    55   Barb.    (N. 

"3     Greenleaf     Ev.      (16th     ed.),  Y.)   606.  612;   Rex  v.  Royce,  4  Burr. 

§§  216.  216.  2073,  1  Hale  P.  C.  65,  §  89. 

="  State  V.  Bailey.  3  Blackf.   (Ind.)  "State  v.  Snow,  18  Me.  346. 
209;     Turpin     v.     State,     4     Blackf. 


§'   3127.]  RIOTS   AND  UNLAWFUL  ASSEMBLIES.  446 

It  has  been  held  to  be  unnecessary  to  establish  that  every  defendant 
was  present  at  the  original  assemblages.  Thus,  one  joining  others 
already  engaged  in  a  riot  is  equally  guilty  with  the  others.^^  And 
persons  who  have  lawfully  assembled  and  afterward  do  an  unlawful 
act  of  violence  in  a  tumultuous  manner  are  guilty  of  riot.^*  "All  who 
join  an  unlawful  assembly,  disregarding  its  probable  effect,  and  the 
alarm  and  consternation  likely  to  ensue,  and  all  who  give  countenance 
and  support  to  it,  are  criminal  parties."^^  But  evidence  that  the  de- 
fendant came  up  just  after  the  riot  was  over  and  did  acts,  which,  if 
done  in  conjunction  with  others,  might  have  amounted  to  a  riot,  does 
not  prove  him  guilty  of  the  offense.^^ 

§  3127.  Proof  as  to  terror  of  the  people. — It  has  been  held  un- 
necessary to  expressly  prove  that  the  deed  was  done  to  the  terror  and 
disturbance  of  the  people,^^  and  where  the  indictment  charges  and  the 
evidence  shows  the  actual  perpetration  of  a  deed  of  violence,  such  as  an 
assault  and  battery,  the  pulling  down  of  a  building  or  the  like,  it  will 
usually  be  sufficient.^*  But  where  the  offense  consists  in  tumultuously 
disturbing  the  peace  without  perpetration  of  any  deed  of  violence  it 
is  held  necessary  to  prove  that  the  conduct  was  to  the  disturbance  and 
terror  of  the  people.^^  "The  violence  necessary  to  constitute  a  riot 
need  not  be  actually  inflicted  upon  any  person.  Threatening  with 
pistols,  or  clubs,  or  even  by  words  or  gestures  to  injure  if  interfered 
with  in  the  prosecution  of  the  unlawful  purpose,  or  any  other  demon- 
stration calculated  to  strike  terror  and  disturb  the  public  peace  is  a 
sufficient  violence  to  constitute  the  assembly  riotous.  So,  where  sev- 
eral attempt,  by  threat  and  menace,  to  rescue  a  lawful  prisoner,  they 

''State  v.   Brazil.  Rice    (S.   Car.)  "State   v.    Sims,   16    S.   Car.    486, 

257.  490. 

=*  Commonwealth    v.    Runnels,    10  =*  Bankus    v.    State,    4    Ind.    114; 

Mass.  518;  Kiphart  v.  State,  42  Ind.  Thayer  v.  State,  11  Ind.  287. 

273.  ^^  Commonwealth    v.    Runnels,    10 

=' Williams  v.  State,  9  Mo.  270.  Mass.  518;    State  v.  Brooks,  1  Hill 

=«  Sloan  v.  State.  9  Ind.  565.  And  (S.  Car.)  362.  And  that  the  defend- 
in  several  other  cases  mere  pres-  ants  knew  or  should  have  known 
ence,  without  some  act  on  the  part  that  their  acts  were  likely  to  lead  to 
of  the  accused  or  evidence  of  his  a  breach  of  the  peace.  Reg.  v.  Clark- 
countenance  or  support,  has  been  son,  66  L.  T.  N.  S.  297.  Proof  that 
held  insufficient.  State  v.  McBride,  one  person  was  terrified  held  suffi- 
19  Mo.  239;  Reg.  v.  Atkinson,  11  Cox  cient.  Reg.  v.  Langford,  Car.  &  M. 
Cr.  Cas.  330.  602;  Reg.  v.  Phillips,  2  Moody  C.  C. 

252. 


447  EVIDENCE    IN    GENERAL.  [§    3128. 

are  guilty  of  a  riot.  Indeed,  it  has  been  held  that  a  trespass  to  prop- 
erty in  the  presence  of  a  person  in  actual  possession,  though  there  is 
no  actual  force,  amounts  to  a  riot.  The  disturbance  of  the  peace  by 
exciting  terror,  is  the  gist  of  offense.  To  disturb  another  in  the  en- 
joyment of  his  lawful  right  is  a  trespass,  which,  if  done  by  three  or 
more  persons  unlawfully  combined,  with  noise  and  tumult,  is  a  riot; 
as  the  disturbance  of  a  public  meeting  or  making  a  great  noise  and 
disturbance  at  a  theater  for  the  purpose  of  breaking  up  the  perform- 
ance, though  without  offering  personal  violence  to  any  one ;  or  even 
going  in  the  night  upon  a  man's  premises  and  shaving  his  horse's  tail, 
if  it  be  done  with  so  much  noise  and  of  such  a  character  as  to  rouse  the 
proprietor  and  alarm  his  family.  Violent  threatening  and  forcible 
methods  of  enforcing  rights,  whether  public  or  private,  are  not  law- 
ful."*°  Testimony  of  a  general  feeling  of  alarm  and  disquiet  has  been 
held  properly  received  to  show  that  the  defendant  disturbed  the  public 
peace.^^ 

§  3128.  Evidence  in  general. — What  is  said  and  done  by  persons 
during  the  time  they  are  engaged  in  a  riot  constitutes  the  res  gestae, 
and  it  is,  of  course,  competent  as  a  rule  to  prove  all  that  is  said  and 
done.  If  the  violent  or  disorderly  conduct  of  the  rioters  results  in  in- 
jury to  property,  and  the  act  of  causing  the  injury  is  committed  during 
the  riot,  the  state  may  prove  the  act  which  caused  the  injury.  This  evi- 
dence is  not  admitted  for  the  purpose  of  establishing  another  offense, 
but  because  it  is  a  part  of  the  occurrence  which  constitutes  the  riot  and 
tends  to  show  that  the  conduct  of  the  defendants  was  riotous  and  vio- 
lent.*- It  has  been  held  that  upon  a  trial  for  a  riot,  evidence  might 
be  received  to  show  that  the  defendants  were  members  of  the  same 
secret  society.*^  In  an  indictment  for  a  riot  and  breaking  into  an 
outhouse,  proof  that  the  house  was  within  the  curtilage,  and  that  the 
door  was  broken  in  a  riotous  manner  without  any  demand  or  refusal 
to  admit  has  been  held  competent  testimony  under  a  count  for  a  riot, 

^^May  Cr.  Law,   §   166;   see  also,  518;   State  v.  Brazil,  Rice  (S.  Car.) 

State  v.  Calder,  2  McCord  (S.  Car.)  257;   State  v.  Alexander,  7  Rich.  L. 

462;    State  v.  Jackson,  1  Speer    (S.  (S.  Car.)  5. 

Car.)  13;  Bell  v.  Mallory,  61  111.  167;  "  People  v.  O'Loughlin,  3  Utah  133, 

Fisher  v.  State,  78  Ga.  258;  State  v.  1  Pac.  653. 

Fisher,  1  Dev.   (N.  Car.)   504;   State  ^=  Gallaher  v.  State.  101  Ind.  411; 

v.   Renton,   15   N.   H.   169;    State  v.  see  also,  Rex  v.  Hunt,  3  B.  &  Aid. 

Brooks,  1  Hill   (S.  Car.)   362;   State  566. 

v.    Townsend,    2    Harr.    (Del.)    543;  "  State  v.  Johnson,  43  S.  Car.  123, 

Commonv/ealth  v.  Runnels,  10  Mass.  20  S.  E.  998. 


§    3128.]  RIOTS  AND  UNLAWFUL  ASSEMBLIES.  448 

and  admissible  in  aggravation  of  the  offense,  although  there  is 
no  count  charging  a  breaking  into  a  house,  within  the  curtilage.** 
It  has  been  held,  however,  that  it  may  not  be  shown  that  the 
defendant  had  been  engaged  in  riotous  proceedings  in  former  years.** 
That  is,  evidence  of  riotous  assemblage  in  former  years  is  incom- 
petent, either  as  tending  to  rebut  the  defense  that  the  assemblage 
in  question  was  of  a  peaceful  character  or  as  tending  in  the  first  in- 
stance to  characterize  the  assemblage  in  question.*"  Where  defend- 
ants' witnesses  had  testified  that  they  were  of  the  party  concerned  in 
the  riot,  they  were  not  allowed  to  give  evidence  of  their  intentions  in 
meeting.*^  In  an  indictment  for  a  riot  and  forcible  trespass  in  enter- 
ing a  man's  dwelling-house,  he  being  in  the  actual  possession  therof, 
and  taking  from  his  possession  slaves  and  other  personal  property, 
it  has  been  held  that  it  is  unnecessary  to  show  that  the  prosecutor  had 
the  right  to  the  property  or  the  right  to  the  possession,  but  whether  he 
had  in  fact  the  possession  thereof  at  the  time  when  that  possession  was 
charged  to  have  been  invaded  with  such  lawless  violence,  and  any  evi- 
dence tending  to  establish  that  possession  is  admissible.*^  And  under 
an  indictment  for  riot,  whereby  a  mill-dam  was  destroyed,  it  is  only 
necessary  to  prove  the  possession  of  the  prosecutor. ***  It  has  been  held 
that  an  allegation  that  some  of  the  rioters  are  unknown  need  not  be 
proved^**  and  even  where  the  act  charged  to  have  been  violently  and 
tumultuously  done  was  an  attempt  to  commit  an  assault  it  is  not  nec- 
essary to  allege  or  prove  that  the  defendants  had  the  present  ability 
to  inflict  an  injury  on  the  prosecuting  witness. ^^  And  it  has  been 
held  that  under  an  indictment  for  a  riot  a  conviction  for  an  assault,^^ 
an  unlawful  assembly,  or  a  rout  may  be  had.^^  And  a  conviction  for 
assault  and  battery  has  been  held,  in  other  jurisdictions,  to  be  no  bar 
to  a  prosecution  for  a  riot.^*  It  has  been  said,  however,  that  where  the 

"Douglass     v.     State,     6     Yerg.  "o  State  v.   Blair,  13  Rich.  L.    (S. 

(Tenn.)  525.  Car.)  93. 

«  State  v.  Renton,  15   N.  H.  169;  '^'  State  v.  Acra,  2  Ind.  App.  384,  28 

CJommonwealth  v.  Campbell,  7  Allen  N.  E.  570. 

(Mass.)  541,  83  Am.  Dec.  705.  ^=  Shouse  v.  Commonwealth,  5  Pa- 

^«  State  v.  Renton,  15   N.  H.  169;  St.  83;  Rex  v.  Hemings,  2  Show.  93; 

see  also,  Reg.  v.  Mailloux,  16   New  but  see,  Ferguson  v.  People,  90  111. 

Br.  493,  499.  510. 

*' United  States  v.  Dunn,  1  Cranch  "State  v.  Sumner,  2  Speers  L.  (S. 

(U.  S.)  165.  Car.)  599,  42  Am.  Dec.  387;  see  also, 

"State  v.  Bennett,  4  Dev.  &  B.  (N.  Rex  v.  Cox,  4  Car.  &  P.  538,  19  E.  C. 

€ar.)  43.  L.  638. 

*«  State  V.  Wilson,  23  N.  C.  32.  "  Freeland  v.  People,  16  111.  380; 


449  EVIDENCE    IN    GENERAL.  [§    3128. 

gravamen  of  a  riot  consisted  of  an  assault  and  battery,  a  conviction 
for  that  offense  will  bar  a  prosecution  for  riot,  but,  where  the 
assault  and  battery  was  merely  incidental  to  the  riot,  then  a  convic- 
tion for  the  former  offense  will  not  necessarily  bar  a  prosecution  for 
the  latter.^5 

see  also,  Ferguson  v.  People,  90  111.  Mass.    454,    8    N.    E.   324;    State   v. 

510;    State  v.  Russell,  45  N.  H.  83;  Townsend,  2  Harr.  (Del.)  543. 

but  compare,  State  v.  Ham,  54  Me.  "'Wininger  v.  State,  13  Ind.  540; 

194;     Commonwealth    v.    Hall,    142  Greenwood  v.  State,  64  Ind.  250. 


Vol.  4  Elliott  Ev.— 29 


CHAPTER    CLII. 


ROBBERY. 


Sec. 

3129. 

3130. 

3131. 

3132. 
3133. 
3134. 


Definition  and  elements. 
Presumptions — O  wnership 

from  possession. 
Presumptions — Fear  and  other 

presumptions. 
Intent. 

Identity  of  accused. 
Res  gestae. 


Sec. 

3135.  Evidence  of  value. 

3136.  Recent    possession    of    stolen 

property. 

3137.  Evidence  of  other  offenses. 

3138.  Circumstantial    evidence. 

3139.  Circumstantial  evidence — Cor- 

roboration. 

3140.  Defenses. 


§  3129.  Definition  and  elements. — Eobbery  may  be  defined  in  a 
general  way  as  a  felonious  taking  of  property  from  the  person  of  an- 
other by  force.^  The  force  necessary  may,  however,  be  either  actual  or, 
in  a  sense,  constructive.  Thus,  robbery  may  be  accomplished,  in  most 
jurisdictions,  by  threats  or  putting  the  person  robbed  in  fear  and 
overcoming  his  will.^  And  it  is  defined  in  substance  by  many  stat- 
utes as  the  felonious  taking  of  personal  property  from  the  person  or 
in  the  presence  of  another,  against  his  will,  by  means  of  force  or  fear.* 
The  offense  is  distinguished  from  larceny  largely  by  the  elements  of 
force  or  putting  in  fear,*  and  evidence  of  the  mere  snatching  of  prop- 


^  See  4  Blackstone  Comm.  242; 
Harris  Cr.  Law  (Forces'  ed.)  177; 
2  Abbott  L.  Diet.  436;  United  States 
v.  Jones,  3  Wash.  (U.  S.)  209;  Rex 
V.  Donolly,  2  East  P.  C,  chap.  16, 
§  129,  cited  in,  Breckinridge  v.  Com- 
monwealth, 97  Ky.  267,  30  S.  W.  643, 
and  State  v.  Brown,  113  N.  Car.  645, 
18  S.  E.  51. 

^  Rains  v.  State,  137  Ind.  83,  36  N. 
E.  532;  Duffy  v.  State,  154  Ind.  250, 
56  N.  E.  209;  Arnold  v.  State,  52 
Ind.  281,  21  Am.  R.  175;  Keeton  v. 
State,  70  Ark.  163,  66  S.  W.  645;  3 
Greenleaf  Ev.,  §  231;  Clary  v.  State, 


33  Ark.  561;  State  v.  Howerton,  58 
Mo.  581;  Dill  v.  State,  6  Tex.  App. 
113;  Foster's  Cr.  Law  128,  2  East 
P.  C.  711. 

^  See,  People  v.  Medina,  (Cal.)  79 
Pac.  842;  People  v.  Foley,  9  N.  Y.  St. 
34;  Rains  v.  State,  137  Ind.  83,  36  N. 
E.  532;  McDaniel  v.  State,  16  Miss. 
401;  State  v.  Lawler,  130  Mo.  366,  32 
S.  W.  979,  51  Am.  St.  575;  State  v. 
Davis,  (Utah)  76  Pac.  705. 

^  "The  distinction  of  robbery  from 
other  kinds  of  larceny,"  says  Mr. 
Harris,  "is,  that  in  the  former  case 
there   must   have   been    a   felonious 


450 


451 


DEFINITION    AND    ELEMENTS. 


[§    312J>. 


erty  from  another  without  violence  or  putting  in  fear  tends  to  prove 
larceny  rather  than  robbery/''  So,  obtaining  money  by  extortion,  false 
pretenses  or  other  trick,  unaccompanied  by  violence  or  putting  in  fear, 
will  not  amount  to  robbery.*'  But  snatching  a  watch  or  purse  from 
another  with  such  violence  as  to  break  a  chain  by  which  it  is  secured/ 
or  snatching  an  earring  with  such  force  as  to  make  the  ear  bleed^  has 
Ijeen  held  sufficient  force  or  violence  to  constitute  robbery  so  far  as 
that  essential  element  is  concerned.  So,  where  the  defendant  had 
bound  the  prosecuting  witness  and  put  her  in  fear  so  that  information 
as  to  the  place  where  she  kept  her  money  and  watch  was  extorted 
from  her,  and  the  defendant,  leaving  her  bound,  took  the  property, 
tliis  was  held  sufficient  to  support  a  conviction  for  robbery,  notwith- 
standing the  property  was  not  attached  to  her  person  and  the  defend- 
ant had  to  go  into  another  room  to  get  it.^ 


taking  from  the  person,  or  in  the 
presence  of  another,  accompanied 
either  by  violence  or  a  putting  in 
fear."  Harris  Cr.  Law  (Forces'  ed.) 
212.   See,  Long  v.  State,  12  Ga.  293. 

'  McCloskey  v.  People,  5  Park  Cr. 
Cas.  (N.  Y.)  299;  People  v.  Hall,  6 
Park  Cr.  Cas.  (N.  Y.)  642;  People  v. 
McGinty,  24  Hun  (N.  Y.)  62;  Bon- 
sall  V.  State,  35  Ind.  460;  see  also, 
Mahoney  v.  People,  5  Thomp.  &  C. 
(N.  Y.)  329;  Norris'  Case,  6  City 
Hall  Rec.  (N.  Y.)  86;  Fanning  v. 
State,  66  Ga.  167;  Spencer  v.  State, 
106  Ga.  692,  32  S.  E.  849;  but  see, 
"Williams  v.  Commonwealth,  20  Ky. 
L.  R.  1850,  50  S.  W.  240;  Snyder  v. 
Commonwealth,  21  Ky.  L.  R.  1538, 
55  S.  AV.  679. 

« Perkins  v.  State,  65  Ind.  317; 
Huber  v.  State,  57  Ind.  341;  see  also, 
James  v.  State,  53  Ala.  380;  Shinn 
V.  State,  64  Ind.  13,  31  Am.  R.  110; 
Routt  V.  State,  61  Ark.  594,  597; 
Doyle  V.  State,  77  Ga.  513;  State  v. 
Deal,  64  N.  Car.  270,  276.  Where  the 
owner  of  the  property  was  drunk 
and  there  was  no  violence  or  put- 
ting in  fear,  it  was  held  no  robbery 


in,  Hall  v.  People,  171  111.  540,  49  N, 
E.  495. 

'  Smith  V.  State,  117  Ga.  320,  43  S, 
E.  736,  97  Am.  St.  165;  Rex  v.  Ma- 
son, 2  Leach  C.  C.  548;  State  v. 
Broderick,  59  Mo.  318;  State  v.  Mc- 
Cune,  5  R.  I.  60,  70  Am.  Dec.  176, 
and  note;  J^nes  v.  Commonwealth, 
112  Ky.  689,  66  S.  W.  633,  57  L.  R.  A. 
432,  and  note,  99  Am.  St.  330;  but 
compare,  Bowlin  v.  State,  (Ark.)  81 
S.  W.  838. 

»Rex  V.  Lapier,  1  Leach  C.  C.  360,. 
2  East  P.  C.  557;  see  also.  State  v. 
Perley,  86  Me.  427,  30  Atl.  74;  Rex 
v.  Moore,  1  Leach  C.  C.  354;  see  for 
other  instances,  Seymour  v.  State, 
15  Ind.  288;  Hughes'  Case,  1  Lewin 
C.  C.  301. 

'  State  V.  Calhoun,  72  Iowa  432,  34 
N.  W.  194,  2  Am.  St.  252;   see  also, 

2  Bishop  Cr.  Law,  §  975;  Wharton 
Cr.  Law,  §  1696;  Clements  v.  State, 
84  Ga.  660,  11  So.  505,  20  Am.  St. 
385;  but  see.  Crews  v.  State,  3 
Coldw.  (Tenn.)  350;  State  v.  Freels, 

3  Humph.  (Tenn.)  228;  see  gener- 
ally. Hill  v.  State,  42  Neb.  503,  60 
N.  W.  916;  Turner  v.  State,  1  Ohio 
St.  422. 


31S0.] 


ROBBERY. 


453 


§  3130.  Presumptions  —  Ownership  from  possession. — Possession 
of  the  property  by  the  prosecuting  witness  at  the  time  it  was  taken 
is  said  to  be  presumptive  evidence  of  ownership  in  him.^°  In  other 
words,  as  the  rule  is  often  stated,  where  money  or  other  property  is 
taken  from  a  party  by  robbery,  the  party  from  whom  such  property 
was  taken  is  prima  facie  the  owner,^^  as  against  the  robber.  Indeed, 
while  some  of  the  cases  seem  to  hold  that  the  person  from  whom  the 
goods  are  taken  must  be  either  the  general  or  special  owner  or  have 
such  an  interest  as  would  entitle  him  to  maintain  an  action  for  taking 
them  from  his  custody,^^  yet  several  of  these  cases  have  been  over- 
ruled, and  it  is  said  that  it  is  not  essential  that  the  property  should 
belong  to  the  person  robbed,^^  The  contention  to  the  contrary,  it  is 
said,  is  a  mere  technicality  and  to  sustain  it  would  be  manifestly 
against  the  reason  of  the  law  and  constitute  an  obstruction  to  justice.^* 
The  subject  is  thoroughly  reviewed  in  a  recent  case  in  which  it  was 
held  that  a  clerk  having  possession  of  his  employer's  money  had  suffi- 
cient ownership  to  support  an  allegation  of  ownership  in  him  in  an 
indictment  for  robbery,  and  below  we  quote  from  the  opinion  at  some 
length. ^° 


"People  v.  Oldham,  111  Cal.  648. 
44  Pac.  312;  People  v.  Becker,  48 
Mich.  43,  11  N.  W.  779;  State  v. 
Howard,  (Mont.)  77  Pac.  50. 

"People  v.  Oldham,  111  Cal.  648, 
44  Pac.  312;  State  v.  Adams,  58 
Kans.  365,  49  Pac.  81;  Bow  v.  Peo- 
ple, 160  111.  443,  43  N.  E.  593;  Du- 
rand  v.  People,  47  Mich.  332,  11  N. 
W.  184;  People  v.  Hicks,  66  Cal.  105, 
4  Pac.  1093;  Morris  v.  State,  84  Ala. 
446,  4  So.  912;  People  v.  Nelson,  56 
Cal.  77;  State  v.  Hobgood,  46  La. 
Ann.  855,  15  So.  406;  see.  State  v. 
Montgomery,  181  Mo.  19,  79  S.  W. 
693,  67  L.  R.  A.  343. 

"See  State  v.  Morledge,  164  Mo. 
522,  65  S.  W.  226;  State  v.  Lawler, 
130  Mo.  366,  32  S.  W.  979,  51  Am. 
St.  575;  Hughes  v.  Commonwealth, 
17  Gratt.  (Va.)  565,  94  Am.  Dec. 
498;  Commonwealth  v.  Williams,  7 
Gray  (Mass.)  337;  East  P.  C,  §  90. 

"  State  v.  Montgomery,  181  Mo.  19, 
79  S.  W.  693    (overruling  the  Mis- 


souri cases  cited  in  last  preceding 
note) ;  Brooks  v.  People,  49  N.  Y. 
436,  10  Am.  R.  398;  State  v.  Adams, 
58  Kans.  365,  49  Pac.  81. 

"  Case  and  Comment,  No.  1,  June, 
1905. 

^=  "Is  it  the  law  that,  if  the  presi- 
dent or  cashier  of  a  bank  should  be 
temporarily  absent  from  the  bank, 
a  robber  may  with  impunity  enter 
the  bank,  and  present  a  revolver  or 
gun  at  the  clerks  left  in  charge,  and 
take  all  the  money  of  the  bank,  and 
escape  punishment  for  robbery?  Or, 
to  state  it  differently,  if  a  gentleman 
confide  to  his  friend  his  watch,  for 
convenience,  and,  after  they  part,  a 
robber  places  his  revolver  at  the 
friend's  head,  and,  by  putting  him 
in  fear,  takes  the  watch,  there  can 
be  no  robbery,  because  the  real 
owner  was  not  present,  and  was  not 
put  in  fear,  and,  as  the  friend  was 
not  a  bailee  for  hire,  and  makes  no 
claim  of  any  property  rights,  other 


453 


PRESUMPTIONS. 


[§    313i. 


§  3131.  Presumptions — Fear  and  other  presumptions. — It  is  said 
by  Professor  Greenleaf  tliat :  "Evidence  that  the  money  or  goods  were 
obtained  from  the  owner  by  putting  him  in  fear,  will  support  the 
allegation  that  they  were  taken  by  force.  And  the  law,  in  odium 
spoliatoris,  will  presume  fear,  wherever  there  appears  a  just  ground 
for  it.  The  fear  may  be  of  injury  to  the  person ;  or,  to  the  property ; 
or,  to  the  reputation ;  and  the  circumstances  must  be  such  as  to  indi- 
cate a  felonious  intention  on  the  part  of  the  prisoner.  The  fear,  also, 
must  be  shown  to  have  continued  upon  the  party  up  to  the  time  when 
he  parted  with  his  goods  or  money ;  but  it  is  not  necessary  to  prove 
any  words  of  menace,  if  the  conduct  of  the  prisoner  were  sufficient 
without  them ;  as,  if  he  begged  alms  with  a  drawn  sword ;  or,  by  simi- 
lar intimidation,  took  another's  goods  under  color  of  a  purchase,  for 
half  their  value,  or  the  like.  It  is  only  necessary  to  prove  that  the 
fact  was  attended  with  those  circumstances  of  violence  or  terror,  which, 


than  his  possession,  therefore  the 
ownership  cannot  be  laid  in  him. 
The  question  is  one  of  much  prac- 
tical moment.  This  identical  ques- 
tion arose  in  Brooks  v.  People,  49 
N.  Y.  436,  10  Am.  R.  398,  on  a  stat- 
ute couched  in  the  exact  words  of 
our  statute,  and  it  was  ruled  by  the 
Court  of  Appeals  of  New  York  that, 
as  against  a  robber,  the  person 
robbed  was  the  owner  of  the  goods 
in  his  possession  and  custody, 
whereof  he  was  robbed.  Judge  Peck- 
ham  in  that  case  traced  the  history 
of  this  section  in  the  New  York 
Code,  and  found  that  the  revisers 
had  said  they  defined  robbery  ac- 
cording to  2  East  P.  C,  chap.  16, 
§§  125-129;  the  material  ingredient 
in  this  offense  being  that  it  is  done 
against  the  will,  by  violence  or  by 
fear  of  immediate  injury  to  the  per- 
son. The  learned  judge  pointed  out 
that  the  elementary  common-law 
writers  generally  did  not  insert  in 
their  definition  of  this  crime  that 
the  property  should  belong  to  the 
person  robbed.  1  Hale  P.  C.  532;  4 
Blackstone  Comm.  241;  2  Russell 
Crimes  (4th  ed.)  98;  Page  Mar.  867; 


Hawkins,  95  C.  34;  Commonwealth 
V.  Clifford,  8  Cush.  (Mass.)  215. 
The  conclusion  was  reached  that,  as 
against  a  robber,  the  possession  was 
sufficiently  laid  in  the  person 
robbed.  The  same  question  again 
arose  on  a  statute  in  the  same  words 
in  State  v.  Adams,  58  Kans.  365,  49 
Pac.  81,  and  the  court  very  aptly 
says:  "The  characteristic  of  rob- 
bery, distinguishing  it  from  other 
forms  of  larceny,  lies  in  the  vio- 
lence inflicted  on  the  person  of  one 
in  possession  of  the  property,  or  in 
putting  him  in  fear  of  injury  to  his 
person.  So  far  as  the  mere  taking  is 
concerned,  the  offense  is  neither 
greater  nor  less  if  filched  in  any 
other  way.  The  gravity  of  the  of- 
fense lies  in  the  breach  of  the  peace, 
in  the  personal  violence  inflicted,  or 
the  terror  excited  in  the  mind  of  the 
individual  robbed.  At  the  common 
law  it  was  never  held  that  the  prop- 
erty belonged  to  the  person  robbed 
It  was  sufllcient  that  the  prope'.iy 
belonged  to  the  person  robbed  or 
some  third  person."  State  v.  Mont- 
gomery, 181  Mo.  19,  79  S.  W.  69.1,  67 
L.  R.  A.  343,  and  note. 


§    3132.]  ROBBERY,  454 

in  common  experience,  are  likely  to  induce  a  man  unwillingly  to  part 
with  his  money  for  the  safety  of  his  person,  property  or  reputation."^" 
Thus,  it  has  been  held  that  actual  fear  need  not  be  strictly  proved,  and 
that  if  the  taking  be  under  such  circumstances  as  would  ordinarily 
create  an  apprehension  of  danger  in  the  mind  of  a  man  of  ordinary 
experience,  and  cause  him  to  give  up  his  property,  such  evidence  will 
be  admissible  and  may  be  sufficient  proof  of  this  element  of  robbery." 
In  a  recent  case  a  witness  was  permitted  to  testify  that  he  was 
the  city  electrician  and  knew  of  the  electric  lights  at  a  certain  place  in 
question,  that  no  report  came  in  from  there  at  the  time  in  question, 
and  that  reports  were  not  made  unless  the  light  went  out.  This  was 
held  proper  as  indirect  evidence  under  the  California  statute,  in  ac- 
cordance with  the  presumption  that  the  ordinary  course  of  business 
was  followed. ^^ 

§  3132.  Intent. — Circumstances  which  show  that  the  accused 
forcibly  or  by  intimidation  and  putting  in  fear,  took  the  property 
from  the  owner  without  his  consent,  intending  to  deprive  him  of  it 
and  convert  it  to  his  own  use,  may  be  shown,  and  the  intent  of  the  ac- 
cused to  rob  may  be  inferred  from  such  acts  and  circumstances.^* 
When  the  taking  of  the  property  has  been  proved,  the  felonious  intent 
may  be  inferred  from  the  circumstances  and  appropriation  of  the 
property.  ^°  The  intent,  however,  it  is  said,  is  not  necessarily  to  be  in- 
ferred from  the  act  done,  but  must  be  established  from  the  circum- 
stances surrounding  the  act,  and  the  investigation  may  extend  beyond 
the  res  gestae.^^    To  constitute  the  crime  of  robbery,  the  taking  must 

^^  3  Greenleaf  Ev.,  §  231.    But  while  prosecuting  witness  may  testify  that 

there  may  be  such  an  inference  or,  he  was  scared.  Long  v.  State,  12  Ga. 

perhaps,  presumption  of  fact,  it  may  293. 

be   too   strong   a   statement   to   say  ^*  People  v.  Kelly,   (Cal.)   79  Pac. 

tnat  the   law   itself   presumes    fear.  846. 

In  several  cases,  however,  it  is  said  '=  State  v.  Woodword,  131  Mo.  369, 

that  the  law  presumes  fear  where  33  S.  W.  14;   People  v.  Hughes,  11 

there  appears  to  be  a  just  ground  Utah  100,  39  Pac.  492. 

for  it,  even  though  there  was  no  ac-  ^''  Jordan    v.     Commonwealth,     25 

tual  fear.    Jones  v.  State,   (Tex.  Cr.  Graft.  (Va.)  943,  948;  Long  v.  State, 

App.)   88  S.  W.  217;  Long  v.  State,  12  Ga.  293;  see  also,  Jones  v.  State, 

12  Ga.  293.  (Tex.  Cr.  App.)  88  S.  W.  217. 

"Long  V.  State,  12  Ga.  293;  Wil-  -°^  State   v.    Glovery,    10    Nev.    24; 

liams  V.  State,  51  Neb.  711,  71  N.  W.  see   also,   Ogden   v.   People,   134    111. 

729;   Pickerel  v.  Commonwealth,  17  599,  25  N.  E.  755;   State  v.  Howard, 

Ky.   L.   R.   120,  30   S.   W.   617.    The  (Mont.)  77  Pac.  50. 


455  IDEXTITY— RES  GESTAE.       [§§  3133,  3134. 

be  animo  furandi,  and  evidence  tending  to  rebut  the  felonious  intent 
is  admissible.^-  It  is  for  the  jury  to  determine,  from  all  tlie  circum- 
stances whether  the  acts  of  the  accused  were  committed  with  intent 
to  rob,  or  for  some  other  purpose.^^  Evidence  which  shows  a  conceal- 
ment of  the  property  may  be  admissible  as  tending  to  show  the 
felonious  intent.-^ 

§  3133.  Identity  of  Accused. — The  identity  of  the  defendant  must 
be  established  by  evidence.  But  the  evidence  may  be  circumstantial 
<as  well  as  direct.  The  circumstances  of  each  case  must  generally  be 
weighed  and  determined  by  the  jury.-^  But  where  there  was  strong 
evidence  of  an  alibi  and  the  only  evidence  tending  to  connect  the  de- 
fendant with  the  crime  was  the  opinion  of  the  person  robbed  that  the 
defendant  was  of  the  form  and  size  of  one  of  the  robbers,  it  was  held 
that  the  defendant's  motion  for  a  new  trial,  after  verdict  of  guilty, 
should  have  been  sustained.^"  In  another  case,  however,  where  the 
robbery  was  by  masked  men,  it  was  held  that  evidence  of  identifica- 
tion mainly  by  the  voice  was  sufficient."^  So,  in  a  recent  case,  after 
proof  that  a  certain  person  was  an  accomplice  of  the  defendant  in  the 
robbery,  testimony  that  such  person,  who  had  lived  in  the  house  of  the 
witness  for  several  months,  was  last  seen  by  him  an  hour  after  the  rob- 
bery and  that  he  was  then  in  the  house,  with  a  person  whose  voice  the 
witness  recognized  as  that  of  the  defendant,  was  held  admissible. -« 

§  3134.     Res  Gestae. — Statements  made  at  the  time  of  the  act  are 

generally  admissible  as  part  of  the  res  gestae  and  circumstances  and 
acts  of  the  defendant  may  sometimes  be  shown  even  if  extending  be- 
yond the  immediate  res  gestae.^^  Unsworn  statements  of  the  victim 
of  the  robbery,  which  were  made  in  the  absence  of  the  accused  several 
hours  after  the  alleged  robbery,  although  explanatory  of  the  transac- 

='  State  v.  Hollyway,  41  Iowa  200,  ='  Ogden  v.  People,  134  111.  599,  25 

20  Am.  R.  586.  N.  E.  755. 

=3  People  v.  Woody,  48  Cal.  80.  -'  Commonwealth     v.     Kelly,     186 

■*  State  v.  Deal,  64  N.  Car.  270.  Mass.  403,  71  N.  E.  807. 

=^  Ogden  v.  People,  134  111.  599,  25  =^  State  v.  Glovery,  10  Nev.  24;  see 
N.  E.  755;  Usom  v.  State,  97  Ga.  194,  also.  Bow  v.  People,  160  111.  438,  43 
22  S.  E.  399;  State  v.  Sipult,  81  Iowa  N.  E.  593;  State  v.  Howard.  (Mont.) 
40,  46  N.  W.  748;  State  v.  Callohon,  77  Pac.  50;  Rex  v.  Rooney,  7  Car.  & 
96  Iowa  304.  65  N.  W.  150;  State  v.  P.  517,  32  E.  C.  L.  736;  Rex  v.  Wink- 
Moore,  106  Mo.  480,  17  S.  W.  658.  worth,  4  Car.  &  P.  444,  19  E.  C.  L. 

=«  State  v.  Campbell,  69  Iowa  556,  594. 
29  N.  W.  604. 


§    3135.]  ROBBERY.  456 

tion  have,  however,  been  held  to  be  hearsay  and  not  admissible  in  evi- 
dence.^" And  a  similar  ruling  was  made,  where  the  declarations  of 
the  prosecuting  witness  were  made  a  few  minutes  after  the  alleged 
robbery  at  a  place  about  two  squares  from  the  scone  of  the  transac- 
tion.^^ Other  courts,  also  have  rejected  such  declarations  at  least  as 
to  the  details  of  the  complaint.^-  But  outcry  declarations  in  the  pur- 
suit of  the  robber  or  attempt  to  arrest  him  have  been  admitted,^^  and 
the  fact  of  a  complaint  being  at  once  made  by  the  person  robbed  has 
also  been  held  competent.^*  There  is  some  reason  for  admitting  the 
fact  of  the  recent  complaint,  or  allowing  the  reason  for  not  mak- 
ing it  to  be  explained  in  order  to  repel  an  adverse  inference,  as  in 
rape  cases,  but  on  this  theory  the  fact  of  the  complaint  only,  is  admis- 
sible and  not  the  details.^'^  It  might  be  also  that  such  complaint,  and 
perhaps  the  details,  would  be  admissible  on  the  theory  of  rehabilitat- 
ing a  witness  by  showing  prior  consistent  statements  where  the  victim 
had  testified  and  the  defendant  had  sought  to  impeach  him  as  having 
recently  fabricated  his  story.  But  the  American  cases  do  not  seem  to 
proceed  on  any  definite  theory,  even  where  they  admit  such  evidence, 
except  that  it  is  generally  conceded  that  it  should  be  admitted  if  part 
of  the  res  gestae.  Some  of  the  decisions  hold  that  it  is  not  admissible, 
ordinarily  at  least,  if  not  part  of  the  res  gestae,  while  others  seem  to 
admit  it  in  some  other  instances  but  do  not  clearly  show  upon  just 
what  theory  it  is  held  competent. 

§  3135.  Evidence  of  value. — In  general  the  value  of  the  article 
taken  must  be  proved,  or  it  must  at  least  appear  to  have  some  value, 
but  under  an  indictment  for  taking  money,  it  is  not  necessary  to  prove 
its  value,  as  money  is  the  measure  of  values.^^  The  accused  may  be 
guilty  of  robbery  even  if  the  property  be  of  the  smallest  value "" 


37 


=°  Moses  V.  State,  88  Ala.  78,  7  So.  Mich.    86,  56   N.   W.  1102;    State  v. 

101,  16  Am.  St.  21.  Smith,  26  Wash.  354,  67  Pac.  70;  see 

^'  Shoecraft  v.  State,  137  Ind.  433,  also,   Lambert   v.    People,    29    Mich. 

36  N.  E.  1113.  71;  People  v.  Morrigan,  29  Mich.  4. 

^"^  See,  Boiling  v.  State,  98  Ala.  80,         '=  Such    seems   to   be   the    English 

12  So.  782;   Brooks  v.  State,  96  Ga.  rule.  Rex  v.  Wink,  6  Car.  &  P.  397; 

353,  23  S.  E.  413;  Jones  v.  Common-  Reg.  v.  Gandfleld,  2  Cox  Cr.  Cas.  43. 
wealth,  86  Va.  743,  10  S.  E.  1004.  '"  McCarty  v.   State,  127   Ind.  223, 

^Bow  V.   People,  160   111.  438,   43  26   N.   E.   665;    State  v.   Helvin,    65 

N.  E.  593;  State  v.  Driscoll,  72  Iowa  Iowa  289,  21  N.  W.  645. 
583,  34  N.  W.  428.  ^'  Commonwealth     v.    White,     133 

^''Driscoll  V.  People,  47  Mich.  416,  Pa.  St.  182,  19  Atl.  350,  19  Am.  St. 

11  N.  W.   221;    People  v.  Hicks,  98  628;   State  v.  Perley,  86  Me.  427,  30 


457  RECENT  POSSESSION.  [§   3136. 

Where  the  indictment  alleges  that  several  articles  have  been  taken  by 
robbery,  proof  of  the  robbery  of  one  is  sufficient.^®  The  value  may 
also  be  important  upon  the  question  of  intent  where  the  value  is  insig- 
nificant and  the  defense  is  that  it  was  taken  by  way  of  a  joke.^^ 

§  3136.  Recent  possession  of  stolen  property. — Where  it  has  been 
shown  that  a  robbery  has  been  committed,  evidence  of  the  possession 
of  the  fruits  of  the  crime  shortly  after  its  commission  certainly  has 
some  tendency,  in  the  absence  of  explanation,  to  show  guilt  of  the  pos- 
sessor. Evidence  of  the  recent  possession  of  stolen  goods  would,  there- 
fore, seem  to  be  admissible  at  least  wliere  the  circumstances  are  such 
as  to  show  that  robbery  was  committed,  and  there  are  authorities  so 
holding.*"  Indeed,  in  one  case  it  is  said:  "The  rule  of  law  being 
that  where  the  accused  has  in  possession  other  stolen  property,  or 
property  acquired  by  robbery,  this  is  a  circumstance  corroborative  of 
the  inference  of  guilty  possession  of  the  particular  property  which  he 
is  charged  with  stealing,  or  otherwise  feloniously  acquiring.'*^  And 
it  was  competent  also  to  introduce  evidence  of  a  subsequent  robbery, 
so  recently  and  subsequently  committed,  and  in  circumstances  so  very 
similar  to  the  one  under  review  as  to  show  that  that  one  was  part  of 
a  system  or  series  of  criminal  operations;  and  this  for  the  purpose, 
also,  of  proving  the  guilty  and  common  intent  which  prompted  the 
doing  of  the  act  done,  and  as  showing  defendant's  manner  and  method 
of  performing  such  acts."-*^  Aj^^j  i^  ^^  elaborate  note  upon  the  gen- 
eral subject  in  the  set  of  reports  edited  by  Mr.  Freeman,  it  is  said: 
"Although  the  cases  in  which  the  doctrine  relating  to  the  possession 
of  stolen  goods  with  reference  to  the  crime  of  robbery  are  not  very 
numerous,  still  the  practice  of  receiving  such  testimony  is  quite  gen- 
eral.    From  the  very  nature  of  the  crime  of  robbery,  such  possession 

Atl.  74,  41  Am.  St.  564;  McCarty  v.  v.    State,    103    Ala.    29,    15    So.    640; 

State,   127   Ind.   223,   26   N.   B.    665;  State  v.  Harris,  97  Iowa  407,  66  N. 

James  v.  State,  53  Ala.  380;  State  v.  W.  728;    State  v.  Sullivan.  9  Mont. 

Perley,  86  Me.  427,  30  Atl.  74,  41  Am.  174,  24  Pac.  23;    People  v.   Mackin- 

St.  564.  der,  80  Hun   (N.  Y.)   40,  29  N.  Y.  S. 

=«  Brown  v.  State,  120  Ala.  342,  25  842. 

So.  182.  "  Citing,   State  v.   Castor,  93   Mo. 

'» Commonwealih     v.     White,     133  242,  5  S.  W.  906;  State  v.  Moore,  101 

Pa.  St.  182,  19  Atl.  350,  19  Am.  St.  Mo.  316,  14  S.  W.  182;    3  Greenleaf 

628.  Ev.  (14th  ed.),  §  31;  Will.  Circ.  Ev., 

*°  State  v.  Wyatt,  124  Mo.  537,  27  chap.  3,  §  4. 

S.  W.  1096;   State  v.  Balch,  136  Mo.  -=  State  v.  Balch,  136  Mo.   103,  37 

103,  37  S.  W.  808;  see  also,  Bradley  S.  W.  808. 


§§  3137,  3138.]  ROBBERY.  458 

ought  not  to  be  of  controlling  weight  unless  the  essential  elements  of 
the  crime  of  robbery  are  proved  and  there  are  other  circumstances  con- 
necting the  possessor  of  the  stolen  goods  with  the  crime.  It  seems  that 
the  same  principles  which  a  court  would  apply  to  evidence  of  such 
possession  in  a  burglary  case  ought  to  apply  in  a  robbery  case."*^  We 
think  there  is  no  presumption  of  law,  however,  from  the  mere  fact  of 
such  possession,  that  the  possessor  is  guilty  of  robbery. 

§  3137.  Evidence  of  other  offenses. — If,  while  the  accused  was 
engaged  in  the  commission  of  the  alleged  robbery,  he  also  committed 
another  offense,  the  whole  transaction,  is  usually  admissible  as  part  of 
the  res  gestae  notwithstanding  the  fact  that  the  evidence  also  shows 
the  commission  of  such  other  offense.**  This  is  especially  true  in  case 
of  a  conspiracy.*^  So,  such  evidence  is  often  admissible  to  show  in- 
tent,***  or  to  identify  the  accused.*^  But  evidence  has  been  held  in- 
competent to  show  that  the  accused  at  another  time  and  place  robbed 
another  person,*^  where  there  was  no  connection  between  the  two 
crimes. 

§  3138.  Circumstantial  evidence. — Circumstantial  as  well  as 
direct  evidence  is  admissible  in  case  of  robbery,  and,  while  the  defend- 
ant's guilt  must  be  proved  beyond  a  reasonable  doubt,  such  proof  may 
be  made,  in  a  proper  case,  by  circumstantial  evidence.  Thus,  as  al- 
ready shown,  evidence  of  the  taking  of  other  property  under  similar 
circumstances  may  be  given,  in  a  proper  case,  as  tending  to  prove  guilt 
of  accused  in  a  particular  case.*''  Burglar's  tools,  dynamite  and  other 
-articles  used  for  robbery,  when  found  upon  the  person  of  the  accused, 
are  competent  as  evidence  upon  a  trial  for  robbery,^"  but  such  articles 

''  101  Am.  St.  484,  note.  "  Hope  v.  People,  83  N.  Y.  418,  38 

**  State    V.    Howard,     (Mont.)     77  Am.  R.  460;  State  v.  Balch,  136  Mo. 

Pac.   50;    People  v.  Nelson,  85  Cal.  109,  37   S.  W.  808;    Davis  v.  State, 

421,   24   Pac.   1006;    Davis  v.   State,  (Tex.  Cr.  App.)  44  S.  W.  1099;  Reg. 

(Tex.  Cr.  App.)   23  S.  W.  684;    see  v.  Briggs,  2  Moody  &  R.  199. 

also.  People  v.   Pallister,  138  N.  Y.  "'State  v.  Spray,  174  Mo.  569,  74 

601,  33  N.  E.  741;  Snapp  v.  Common-  S.    W.    846;    People    v.    Romano,   84 

wealth,    82    Ky.    173;    State    v.    Mc-  App.  Div.    (N.  Y.)   318,  82  N.  Y.  S. 

Cahill,  72  Iowa  111,  30  N.  W.  553,  33  749;  see  also.  Coble  v.  State,  31  Ohio 

N.   W.   599;    Kennedy  v.   State,   107  St.  100. 

Ind.  144,  6  N.  E.  305.  •"•  State  v.  Balch,  136  Mo.  103,  37 

"State    V.    Howard,     (Mont.)     77  S.  W.  808.   See  also,  ante,  §  3137,  evi- 

Pac.  50.  dence  of  other  offenses. 

"  See  also,  62  L.  R.  A.  193,  note.  ^^  State  v.  Minot,  79  Minn.  118,  81 


459  CIRCUMSTANTIAL    EVIDENCE — CORROBORATION.  [§    3139. 

when  not  connected  with  the  accused  can  not  be  used.^^  Suspicious 
actions  upon  the  part  of  the  defendant  immediately  after  the  act,  as 
burying  money  in  the  yard,  may  also  be  shown  in  a  prosecution  for 
robbery.  °^ 

§  3139.  Circumstantial  evidence  —  Corroboration.  —  Where  there 
was  evidence  that  in  a  scuffle  in  which  the  defendant  had  robbed  the 
prosecuting  witness,  that  the  money  was  torn  in  two,  the  torn  pieces 
remaining  in  the  prosecutor's  hands  were  held  admissible  in  corrobora- 
tion of  the  assault.^^  Evidence  of  the  burglary  of  a  bank,  immediately 
after  the  defendant  forcibly  took  the  key  from  the  janitor  of  the  bank, 
is  admissible  as  connecting  the  defendant  with  the  robbery  of  the  key.^* 
Evidence  of  other  acts  of  robbery  upon  the  part  of  the  accused  may  also 
be  admissible  in  a  proper  case  as  tending  to  establish  guilt  in  the  pres- 
ent case.^^  Testimony  that  the  prosecuting  witness  had  money  of  the 
value  and  description  charged  to  have  been  taken,  in  his  possession, 
.'  shortly  before  the  alleged  robbery  has  also  been  held  admissible^®  as 
corroborating  evidence.  So,  where,  in  anticipation  of  being  robbed, 
and  in  order  to  detect  the  robber,  the  prosecuting  witness  carried 
marked  currency,  the  admission  in  evidence  of  a  written  memorandum 
preserved  by  another  witness,  at  the  time  he  gave  the  prosecuting  wit- 
ness the  bills,  of  the  numbers  and  denominations  thereof,  and  used 
by  the  witness,  who  stated  that  it  was  correct  and  made  at  the  time, 
was  held  not  to  be  erroneous."  It  has  been  held  that  a  physician  who 
attended  the  person  immediately  after  the  robbery  may  testify  as  to 
her  condition  at  that  time.^**  Evidence  of  the  wounded  condition  of 
an  accomplice,  and  that  he  had  pistols  in  his  possession  after  the  rob- 
bery, which  were  covered  with  blood  has  been  held  admissible;  and 
where  defendant  is  tried  with  others,  evidence  of  finding  part  of  the 

N.  W.   753;    State  v.   Shields,  13   S.  "Hope  v.  People,  83  N.  Y.  418,  38 

Dak.  464,  83  N.  W.  559;   Denman  v.  Am.  R.  460. 

State,  (Tex.  Cr.  App.)  47  S.  W.  366;  ^^  State  v.  Fallon,  2  N.  Dak.  510,  52 

Turley  v.  People,  188  111.  628,  59  N.  N.  W.  318;    Armstrong  v.  State,  34 

E.  506.  Tex.  Cr.  App.  248,  30  S.  W.  235. 

"  Williams  v.  State,  51  Neb.  711,  '"  Bradley  v.  State,  103  Ala.  29,  15 

71  N.  W.  729;  People  v.  Oldham,  111  So.  640. 

Cal.  648,  44  Pac.  312;  People  v.  San-  "Jones  v.  State,   (Tex.  Cr.  App.) 

some,  84  Cal.  449,  24  Pac.  143.  88  S.  W.  217. 

=■=  Thompson  v.  State,  35  Tex.  Cr.  ''^  Commonwealth     v.    Flynn,    165 

App.  511,  34  S.  W.  629.  Mass.  153,  42  N.  E.  562. 

"Tracy  v.   State,  46  Neb.  361,   64 
N.  W.  1069. 


§    3140.]  ROBBERY.  460 

stolen  goods  upon  one  of  the  others  has  heen  held  competent.^^  Bur- 
glar's tools  may  be  used  against  the  defendant  as  evidence  in  a  proper 
case/*'  and  when  the  stolen  property  is  found  in  the  defendant's  house,  '• 
this  may  be  shown  in  evidence,  especially  when  he  is  identified  as  the 
man  who  committed  the  act."  In  a  recent  case  where  the  prosecuting 
witness  had  testified  that  he  pointed  out  to  a  certain  person  in  com- 
pany with  others,  the  place  where  the  robbery  was  committed,  it  was 
held  that  evidence  of  such  person  that  he,  in  company  with  such  others, 
went  to  the  place  of  the  crime  and  made  certain  measurements  from 
the  point  so  shown  by  prosecutor,  was  admissible.®^  It  was  also  held 
in  the  same  case  that  evidence  that  the  defendant  was  booked  at  the 
police  station  by  an  assumed  name  was  not  admissible,  but  that  where 
three  persons  were  charged  with  robbery,  evidence  of  the  keeper  of  a 
boarding-house,  at  which  they  stopped  prior  to  the  commission  of  the 
offense,  that  two  of  them,  including  the  defendant,  registered  under 
assumed  names  was  admissible. 

§  3140.  Defenses.— It  has  been  held  that  the  defendant  may  tes- 
tify that  at  the  time  of  the  taking  of  the  property,  he  thought  it  was 
his  own  and  that  he  had  a  right  to  take  it,  as  there  could  be  no  rob- 
bery where  the  owner  took  what  rightfully  belonged  to  him.®^  j^  ^gs 
also  been  held  that  while  voluntary  drunkenness  is  no  excuse  for  crime, 
yet  evidence  of  intoxication  and  the  mental  condition  of  the  defendant 
is  entitled  to  go  to  the  jury  upon  the  question  of  felonious  intent,  and 
if  the  intoxication  was  so  great  that  he  did  not  know  what  he  was  doing 
and  could  not  entertain  or  form  a  felonious  intent  it  would  constitute 
a  good  defense.''*  The  defendant  may  also  rely  upon  an  alibi  and  intro- 
duce proper  evidence  to  prove  it,  or  he  may,  in  general,  introduce  any 

""  People  V.  Whitson,  43  Mich.  419,  ^  Boles  v.  State,  58  Ark.  35,  22  S. 
5  N.  W.  454;  People  v.  Mackinder,  W.  887;  State  v.  Dengel,  24  Wash. 
80  Hun  (N  Y.)  842,  29  N.  Y.  S.  842;  49,  63  Pac.  1104;  see,  People  v.  Beck- 
also  see,  Grumes  v.  State,  28  Tex.  er.  48  Mich.  43,  11  N.  W.  779;  see 
App  516,  13  S.  W.  868,  19  Am.  St.  also,  Commonwealth  v.  White,  135 
853;   Bow  v.  People,  160  111.  438,  43  Pa.  St.  182,  19  Atl.  350,  19  Am.  St. 


N.  E.  593. 


628. 


'State  v.  Shannon,  33  Mo.  596.  «^  Keeton  v.  Commonwealth,  92 
Concerning  pistol,  see,  Williams  v.  Ky.  522.  18  S.  W.  359;  see  also,  Rob- 
State,  34  Tex.  Cr.  App.  523,  31  S.  W.  erts  v.  People,  19  Mich.  401;  People 
405.    '  v.  Walker,  38  Mich.  156;    People  v. 

"State  V.  Wayatt,  124  Mo.  537,  27  Harris,  29  Cal.  678;  Wood  v.  State, 

S.  W.  1096.  34  Ark.  341,  36  L.  R.  A.  469,  note. 

«=  People  v.  Kelly,    (Cal.)   79  Pac. 
846. 


461  DEFENSES.  [§    3140. 

proper  evidence  to  rebut  that  of  the  prosecution  and  to  show  that  no 
such  crime  as  that  charged  was  committed  or  that  he  was  not  the 
guilty  party,  and  if  he  does  so  successfully  it  will  constitute  a  good 
defense.^*^  There  is  nothing  so  peculiar  about  the  defenses  in  robbery 
cases  as  to  require  any  further  treatment  in  this  connection.  Atten- 
tion is  called,  however,  to  a  recent  case  in  which  police  officers  were 
held  guilty  of  robbery  in  forcibly  searching  a  prisoner  and  keeping 
part  of  the  valuables  found  upon  him  with  felonious  intent,  notwith- 
standing they  set  up  in  defense  the  legality  of  the  arrest  the  right  to 
use  force  and  to  search  the  prisoner.  The  court  said,  in  substance, 
that  although  the  officers  make  a  rightful  arrest,  yet  if  they  subse- 
quently use  violence  and  rob  the  party  arrested,  they  are  not  exon- 
erated on  account  of  the  legality  of  the  alleged  arrest,  and  that  con- 
ceding that  they  may  search  the  prisoner  and  take  valuables  from 
him  for  the  purpose  of  keeping  them  safely  until  he  is  set  free,  yet, 
if  they  had  the  intent,  at  the  time  of  finding  valuables  or  money  on 
him,  to  take  the  same,  and  used  force  to  make  the  search,  and  did 
'  take  the  valuables  for  themselves,  their  right  of  search  is  not  avail- 
able to  defeat  a  prosecution  for  robbery.®^ 

°'  In  State  v.  Fair,  35  Wash.  127,  shown  and  the  evidence  failed  to 
76  Pac.  731,  the  jury  found  that  the  connect  the  accused  with  the  crimes, 
defendant  was  guilty  notwithstand-  «"  Jones  v.  State,  (Tex.  Cr.  App.) 
ing  several  witnesses  testified  that  88  S.  W.  217.  See  also,  Rex  v.  Gas- 
he  was  many  miles  away  at  the  coigne,  1  Leach  C.  C.  313.  And  suh- 
time  of  the  robbery,  but,  the  evi-  sequent  return  of  the  property  is  no 
dence  being  conflicting,  the  verdict  defense  where  the  crime  is  already 
was  upheld.  But  in  State  v.  Camp-  complete.  McGinty  v.  State,  97  Ga. 
bell,  69  Iowa  556,  29  N.  W.  604,  the  368,  23  S.  E.  831;  Hope  v.  People,  83 
judgment  of  conviction  was  re-  N.  Y.  418,  38  Am.  R.  460;  Rex  v. 
versed  because  an  alibi  was  clearly  Peat,  1  Leach  C.  C.  266. 


CHAPTER    CLIII. 


SEDUCTION. 


Sec. 

3141.  Definition — Elements. 

3142.  Burden  of  proof. 

3143.  Presumptions. 

3144.  Questions  of  law  or  fact. 

3145.  Chastity. 

3146.  Reputation. 

3147.  Reformation. 


Sec. 

3148.  Promise  of  marriage. 

3149.  Res  gestae. 

3150.  Admissions. 

3151.  Circumstantial  evidence. 

3152.  Corroboration. 

3153.  Defenses. 


§  3141.  Definition — Elements. — Seduction,  as  such,  was  not  an 
indictable  crime  at  common  law.^  It  is  now  made  such,  however,  by 
statute  in  nearly  all,  if  not  all,  jurisdictions.  Seduction  is  defined 
by  the  statutes  of  most  states  as  the  act  of  persuading  or  inducing  a 
woman  of  previous  chaste  character  (or  of  good  repute  for  chastity, 
according  to  some  of  them),  to  depart  from  the  path  of  virtue  and 
obtaining  her  consent  to  illicit  intercourse,  by  means  of  promises  and 
persuasions.'  It  is  generally  necessary  to  show  that  the  intercourse 
was  accomplished  by  some  artifice  or  deception,  and  the  law  will  not 


1  Wilson  v.  State,  73  Ala.  527; 
People  v.  Nelson,  153  N.  Y.  90,  46  N. 
E.  1040,  60  Am.  St.  592;  Anderson  v. 
Commonwealth,  5  Rand.  (Va.)  627, 
16  Am.  Dec.  776;  87  Am.  Dec.  405, 
note. 

-  See,  People  v.  De  Fore,  64  Mich. 
693,  31  N.  W.  585,  8  Am.  St.  863; 
Patterson  v.  Hayden,  17  Ore.  238,  21 
Pac.  129,  11  Am.  St.  822;  Phillips  v. 
State,  108  Ind.  406,  9  N.  E.  345;  Cal- 
lahan V.  State,  63  Ind.  198;  Norton 
v.  State,  72  Miss.  128,  16  So.  264,  87 
Am.  Dec.  405,  406,  note.  This  does 
not  mean,  however,  that  there  can- 
not be  seduction  where  a  woman, 
although  once  fallen,  has  reformed 

46 


and  is  chaste  at  the  time  of  the  al- 
leged seduction.  Perhaps  no  better 
general  definition  of  seduction  as  a 
crime  can  be  given  than  that  sug- 
gested in  the  note  in  76  Am.  St.  659, 
682,  although  even  that  definition 
does  not  include  every  element  es- 
sential under  some  statutes.  It  is  as 
follows:  "The  act  of  a  man  in  se- 
ducing a  woman  of  previous  chaste 
character  or  good  repute  to  have  un- 
lawful sexual  intercourse  with  him, 
either  by  means  of  promises,  per- 
suasions, or  arts  of  deception,  or  by 
means  of  a  promise  of  marriage,  or 
by  means  of  a  promise  of  marriage 
and  some  other  persuasion." 

9 


463 


BURDEN    OF    PROOF. 


[§    3142. 


inflict  the  penalty  visited  upon  seduction  as  a  crime  where  it  is  shown 
that  only  an  appeal  to  the  woman's  passion  was  indulged  in  by  the 
man.^  In  many,  but  not  all,  of  the  states  there  must  also  be  a  prom- 
ise of  marriage.*  Essential  elements,  under  all  the  statutes,  however, 
are  the  illicit  intercourse,^  and  the  consent  of  the  woman,"  which,  if 
not  obtained  by  a  false  or  feigned  promise  of  marriage,  must  gener- 
ally be  obtained  at  least  by  some  kind  of  arts,  wiles,  enticement  or 
persuasion.  It  is  also  essential  in  many  of  the  states  that  the  woman 
should  be  unmarried.'' 


§  3142.  Burden  of  proof. — The  burden  is  upon  the  state  to  prove 
the  defendant's  guilt  beyond  a  reasonable  doubt,  and,  of  course,  the 
essential  elements  of  the  crime  must  be  proved.^     We  have  already 


» State  v.  Hemm,  82  Iowa  609,  48 
N.  W.  971;  People  v.  Clark,  33  Mich. 
112;  State  v.  Fitzgerald,  63  Iowa 
268,  19  N.  W.  202;  State  v.  Patter- 
son, 88  Mo.  88,  57  Am.  R.  374;  see, 
however,  Powell  v.  State,  (Miss.)  20 
So.  4. 

*  Mills  V.  Commonwealth,  93  Va. 
815,  22  S.  E.  863;  Barker  v.  Com- 
monwealth, 90  Va.  820,  20  S.  E.  776; 
Callahan  v.  State,  63  Ind.  198;  87 
Am.  Dec.  408,  note;  see  also.  People 
V.  Clark,  33  Mich.  112;  Bowers  v. 
State,  29  Ohio  St.  542;  Cole  v.  State, 
40  Tex.  147;  People  v.  Kehoe,  123 
Cal.  224,  55  Pac.  911,  69  Am.  St.  52; 
West  v.  State,  1  Wis.  209 ;  Wright  v. 
State,  62  Ark.  145,  34  S.  W.  545,  76 
Am.  St.  670,  note. 

^Cunningham  v.  State,  73  Ala.  51; 
Cheaney  v.  State,  36  Ark.  74;  People 
V.  Hubbard,  92  Mich.  322,  52  N.  W. 
729;  State  v.  Reeves,  97  Mo.  668,  10 
S.  W.  841,  10  Am.  St.  349 ;  Safford  v. 
People,  1  Park.  Cr.  Cas.  (N.  Y.) 
474;  State  v.  Horton,  100  N.  Car. 
443,  6  S.  E.  238,  6  Am.  St.  613;  State 
v.  King,  9  S.  Dak.  628,  70  N.  W. 
1046;  Bailey  v.  State.  36  Tex.  Cr. 
App.  540,  38  S.  W.  185;  Gorzell  v. 
State,  43  Tex.  Cr.  App.  82,  63  S.  W. 
126. 


« Jones  V.  State,  90  Ga.  616,  16  S. 
E.  380;  People  v.  Gibbs,  70  Mich. 
425,  38  N.  W.  257;  People  v.  Nelson, 
153  N.  Y.  90,  46  N.  E.  1040,  60  Am. 
St.  592;  State  v.  Horton,  100  N.  Car. 
443,  6  S.  E.  238,  6  Am.  St.  613; 
Barnes  v.  State,  37  Tex.  Cr.  App. 
320,  39  S.  W.  684;  Croghan  v.  State, 
22  Wis.  444.  In  most  of  these  cases 
seduction  is  distinguished  from  rape 
mainly  on  this  ground.  See  also. 
State  v.  Lewis,  48  Iowa  578,  30  Am. 
R.  407;  Hodges  v.  Bales,  102  Ind. 
494;  People  v.  Royal,  53  Cal.  62; 
People  V.  De  Fore,  64  Mich.  693,  31 
N.  W.  585,  8  Am.  St.  863;  and  com- 
pare. State  V.  Kingsley,  39  Iowa  439. 

■  See  note  in  76  Am.  St.  676,  and 
authorities  referred  to  there  and  in 
subsequent  sections  in  this  chapter. 
Essential  elements  under  the  stat- 
utes of  several  different  jurisdic- 
tions are  referred  to  in  La  Rosae  v. 
State.  132  Ind.  219,  221,  37  N.  E. 789. 

**  See,  People  v.  Krusick,  93  Cal. 
74,  28  Pac.  794;  State  v.  Marshall, 
137  Mo.  463,  36  S.  W.  619;  Snod- 
grass  V.  State,  (Tex.  Cr.  App.)  31 
S.  W.  .366;  see  also.  Smith  v.  State, 
107  Ala.  139,  18  So.  306;  Suther  v. 
State,  118  Ala.  88,  24  So.  43;  State 
V.  Fisher,  162  Mo.  169,  62  S.  W.  690; 


§  3143.] 


SEDUCTION. 


464 


called  attention  to  those  that  are  prescribed  by  most  of  the  statutes, 
but  the  local  statutes  and  decisions  must  be  consulted  upon  the  sub- 
ject. The  statutes  of  most  states  make  it  a  crime  to  seduce  a  female 
of  good  repute  for  chastity  or  of  previous  chaste  character,  under 
promise  of  marriage,  or  the  like ;  therefore  it  is  held  to  be  the  duty  of 
the  state  in  these  cases,  to  prove  her  good  repute  or  previous  chaste 
character,  as  the  case  may  be,  affirmatively.^  The  burden  is  upon  the 
state  to  prove  the  age  of  the  female,  her  previous  chaste  character, 
the  promise  of  marriage  and  the  seduction  because  of  the  promise, 
and  where  the  state  has  done  this,  a  prima  facie  case  is  established.^" 
The  burden  is  also  upon  the  state,  in  many  jurisdictions  at  least,  to 
show  that  the  prosecutrix  was  an  unmarried  woman  at  the  time  of 
the  alleged  seduction. ^^  In  some  states  the  female  must  be  under  the 
age  of  twenty-one  years.^^ 

§  3143.     Presumptions. — It  is  frequently  said  that  in  a  prosecu- 
tion for  seduction  the  chastity  of  the  one  seduced  at  the  time  of  the 


State  v.  Brown,  64  N.  J.  L.  414,  45 
Atl.  800.  But  in  some  jurisdictions 
the  presumption  of  chastity  has 
been  carried  so  far  that  the  defend- 
ant must  prove  by  a  preponderance 
of  the  evidence  that  the  character 
of  the  prosecutrix  for  chastity  was 
bad,  in  order  to  escape  conviction 
on  that  ground,  and  that  a  reason- 
able doubt  by  the  jury  on  that  sub- 
ject is  insufficient  to  acquit.  See, 
State  V.  Hemm,  82  Iowa  609,  48  N. 
W.  971;  State  v.  Brown,  86  Iowa 
121,  53  N.  W.  92. 

°  Oliver  v.  Commonwealth,  101  Pa. 
St.  215,  47  Am.  R.  704;  Zabriskie  v. 
State,  43  N.  J.  L.  640,  39  Am.  R. 
610;  State  v.  McCaskey,  104  Mo. 
644,  16  S.  W.  511;  West  v.  State,  1 
Wis.  209;  People  v.  Wallace,  109 
Cal.  611,  42  Pac.  159;  Norton  v. 
State,  72  Miss.  128,  16  So.  264,  18 
So.  916,  48  Am.  St.  538;  State  v. 
Eckler,  106  Mo.  585,  17  S.  W.  814, 
27  Am.  St.  372;  see  also,  Harvey  v. 
Territory,  11  Okla.  156,  65  Pac.  837; 
State  V.  Horton,  100  N.  Car.  443,  6 
S.   E.    238,    6   Am.    St.    613;    contra, 


State  V.  McClintic,  73  Iowa  663,  35 
N.  W.  696;  also  see.  State  v.  Thorn- 
ton, 108  Mo.  640,  18  S.  W.  841;  Bark- 
er V.  Commonwealth,  90  Va.  820, 
20  S.  E.  776;  Mills  v.  Common- 
wealth, 93  Va.  815,  22  S.  E.  863; 
Caldwell  v.  State,  (Ark.)  83  S.  W. 
929.  This  may  depend  somewhat 
upon  the  language  of  the  particular 
statute. 

^o  State  V.  Lockerby,  50  Minn.  363, 
52  N.  W.  958,  36  Am.  St.  656;  State 
V.  Thornton,  108  Mo.  640,  18  S.  W. 
841;  People  v.  Wallace,  109  Cal.  611, 
42  Pac.  159;  Oliver  v.  Common- 
wealth, 101  Pa.  St.  215,  47  Am.  R. 
704. 

"People  V.  Krusick,  93  Cal.  74, 
28  Pac.  794;  West  v.  State,  1  Wis. 
209;  State  v.  Wheeler,  108  Mo.  658, 
18  S.  W.  924. 

'==  Burns  Ind.  Rev.  Stat,  §  2070; 
New  York  Penal  Code,  284;  Con- 
necticut Gen.  Stat.  1526;  Iowa  Code, 
3867;  Michigan  Hore.  Sts.  9283;  Mis- 
souri Rev.  Stat.  3486;  Ohio  Rev. 
Stat.  7022;  Rhode  Island  Pub.  Stat. 
244. 


465  PEESUMPTIONS — QUESTION    OF    LAW    OR    FACT.  [§    3144. 

seduction  will  be  presumed,  in  tlie  absence  of  evidence  to  the  con- 
trary," and,  in  a  sense  this  is  true.  This  presumption,  however,  may 
be  rc])utted  by  circumstances  surrounding  the  case  or  by  proven  or 
admitted  facts.^*  Though  tlie  law  presumes  the  prosecutrix  chaste, 
still  the  burden  is  upon  tlie  state,  under  many  of  the  statutes  at  least, 
to  allege  and  prove  her  previous  chaste  character  or  good  repute,  for 
every  one  is  presumed  innocent  until  proved  guilty.^^  This  is  believed 
to  be  the  better  rule,  at  least  as  to  good  repute,  although  as  shown  in 
the  first  note  to  the  last  preceding  section,  there  is  some  conflict 
among  the  authorities.  A  presumption  of  reformation  may  arise 
where  a  reasonable  time  has  elapsed  after  the  first  seduction  or  inter- 
course, but  where  the  act  is  committed  frequently,  no  such  presump- 
tion can  well  arise,  and  the  burden  is  upon  the  state. ^^ 

§  3144.  Question  of  law  or  fact. — Every  case  of  seduction,  it  is 
said,  must  be  determined  by  the  jury  upon  the  peculiar  circumstances 
surrounding  the  case,  for  what  would  be  sufficient  to  overpower  the 
mind  of  one  woman  would  have  but  litttle  influence  upon  the  mind  of 
another ;  therefore,  the  age,  advantages  in  life,  the  intelligence  of  the 
parties  and  their  condition  are  circumstances  to  be  considered  and 
weighed  in  the  balance  in  determining  whether  there  has  been  seduc- 
tion.^' It  has  been  held  that  a  witness  will  not  be  allowed  to  testify 
that  the  defendant  acted  as  a  lover  of  the  girl,  as  this  question  is  for 

"Andre  v.  State,  5  Iowa  389,  68  18  S.  E.  140;  Mills  v.  Common- 
Am.  Dec.  708;  People  v.  Brewer,  27  wealth,  93  Va.  815,  22  S.  E.  863. 
Mich.  134;  People  v.  Squires,  49  "  State  v.  McCaskey,  104  Mo.  644, 
Mich.  487,' 13  N.  W.  828;  McTyier  16  S.  W.  511;  West  v.  State,  1  Wis. 
V.  State,  91  Ga.  254,  18  S.  E.  140;  209;  State  v.  Wenz,  41  Minn.  190,  42 
O'Neill  V.  State,  85  Ga.  383,  11  S.  N.  W.  933;  State  v.  Eckler,  106  Mo. 
E.  856;  Mills  v.  Commonwealth,  93  858,  17  S.  W.  814,  27  Am.  St.  372; 
Va.  815,  22  S.  E.  863;  Ferguson  v.  see  also  note  to.  People  v.  De  Fore, 
State,  71  Miss.  805,  15  So.  66;  State  8  Am.  St.  871;  note  to.  State  v.  Car- 
V.  McClintic,  73  Iowa  663,  35  N.  W.  ron,  87  Am.  Dec.  407;  Bishop  Stat. 
696,  holds  that  the  previous  chaste  Crimes  (2nd  ed.)  648;  Suther  v. 
character  of  the  prosecutrix  is  pre-  State,  118  Ala.  88,  24  So.  43. 
sumed  and  the  state  is  not  required  ^"People  v.  Clark,  33  Mich.  112; 
to  prove  it;  see  and  compare,  State  People  v.  Squires,  49  Mich.  487,  13 
V.  Wenz,  41  Minn.  196,  42  N.  W.  933;  N.  W.  828. 

Norton  v.  State,  72  Miss.  128,  18  So.  ''  State  v.  Fitzgerald,  63  Iowa  268, 

916,  48  Am.  St.  538.  19   N.  E.    202;    State  v.   Higdon,   32 

"State  v.  Bowman,  45  Iowa  418;  Iowa   262;    State  v.   Heatherton,   60 

Polk  v.  State.  40  Ark.  482,  48  Am.  Iowa  175,  14  N.  W.  230. 
R.  17;  McTyier  v.  State,  91  Ga.  254, 

Vol.  4  Elliott  Ev.— 30 


3145.] 


SEDUCTION. 


466 


the  jury,  and  the  witness  must  confine  himself  to  a  description  of  the 
acts  and  will  not  be  allowed  to  draw  inferences.^ ^  The  competency 
of  corro1)orative  evidence  is  a  question  for  the  court,  but  the  weight 
or  sufficiency  of  the  evidence  is  for  the  jury.^^  And  the  question  of 
the  chastity  of  the  prosecutrix  is  a  question  for  the  jury.^^ 

§  3145.  Chastity. — The  statutes  of  many  of  the  states  provide 
that  the  woman  seduced  shall  have  been  of  a  previous  chaste  char- 
acter.2^  The  question  of  the  virtue  of  the  prosecutrix  is  an  impor- 
tant question  to  be  considered  in  determining  whether  the  defendant 
is  guilty  of  seduction.22  The  previous  chaste  character  referred  to 
in  the  statutes  of  most  states  is  held  to  have  reference  to  the  time 
immediately  preceding  the  act,  and  under  no  circumstances  will 
evidence  be  allowed  which  has  reference  to  the  woman's  character 
after  the  offense. ^^  There  is  some  conflict  in  the  several  states  as  to. 
just  how  long  before  the  act  the  defendant  may  show  improper  rela- 
tions with  other  men,  but  evidence  upon  the  subject  of  previous  chaste 
character  must  not  extend  to  a  time  that  is  too  remote.  The  chastity 
of  the  female  under  such  statutes  may  be  impeached  by  evidence  of 


"Carney  v.  State,  79  Ala.  14;  Ken- 
yon  V.  People,  26  N.  Y.  203,  84  Am. 
Dec.  177. 

i»  State  V.  Bell,  49  Iowa  440;  State 
V.  Kingsley,  39  Iowa  439;  State  v. 
Brinkhaiis,  34  Minn.  285,  25  N.  W. 
642;  State  v.  Curran,  51  Iowa  112, 
49  N.  W.  1006;  State  v.  Smith, 
(Iowa)  100  N.  W.  40;  Jones  v.  State, 
90  Ga.  616,  16  S.  E.  380;  see,  how- 
ever. Mills  v.  Commonwealth,  93  Va. 
815,  22  S.  E.  863;  Cunningham  v. 
State,  73  Ala.  51. 

^'''McTyier  v.  State,  91  Ga.  254,  18 
S.  E.  140;  State  v.  Hemm,  82  Iowa 
609,  48  N.  W.  971. 

=^Woocl  v.  State,  48  Ga.  192,  15 
Am.  R.  664;  Polk  v.  State.  40  Ark. 
482,  48  Am.  R.  17;  People  v.  Nelson, 
153  N.  Y.  90,  46  N.  E.  1040,  60  Am. 
St.  592;  note  to,  State  v.  Carron,  87 
Am.  Dec.  408;  Polk  v.  State,  40  Ark. 
482,  48  Am.  R.  17,  holds  in  substance 
that  even  where  the  statute  did  not 


provide  that  the  woman  seduced 
should  have  been  of  previous  chaste 
character,  still  this  is  a  matter  of 
investigation;  see  also,  Putman  v. 
State,  29  Tex.  App.  454,  16  S.  W.  97; 
Norton  v.  State,  72  Miss.  128,  18  So. 
916,  48  Am.  St.  538. 

"Andre  v.  State,  5  Iowa  389,  68 
Am.  Dec.  408 ;  Polk  v.  State,  40  Ark. 
Ga.  474,  20  S.  E.  211;  State  v.  Deit- 
rick,  51  Iowa  467,  1  N.  W.  732. 

=^  Bracken  v.  State,  111  Ala.  68,  20 
So.  636,  56  Am.  St.  23;  People  v. 
Brewer,  27  Mich.  134;  State  v. 
Brassfield,  81  Mo.  151,  51  Am.  R. 
234;  Boyce  v.  People,  55  N.  Y.  644; 
State  v.  Clemons,  78  Iowa  123,  42 
N.  W.  562;  People  v.  Clark,  33  Mich. 
112;  State  v.  Dunn,  53  Iowa  526,  5 
N.  W.  707;  Mann  v.  State,  34  Ga.  1; 
State  v.  Wells,  48  Iowa  671;  see. 
Brock  v.  State,  95  Ga.  474,  20  S.  E. 
211;  Smith  V.  Commonwealth,  (Ky.) 
32   S.  W.  137. 


467  CHASTITY.  [§   3145. 

specific  acts  of  immorality,^*  and  it  has  been  held  that  the  prosecut- 
ing witness  may  be  cross-examined  as  to  whether  she  had  not  used 
indecent  language  with  other  men  or  been  found  in  bed  with  other 
men.^**  Under  such  statutes,  unlike  those  to  be  considered  in  the 
next  section,  character  is  directly  in  issue,  and  it  is  generally  held,  in 
accordance  with  the  distinction  elsewhere  stated,-"  that  it  may  be 
impeached  by  specific  acts  of  lewdness,  and  evidence  of  mere  reputa- 
tion is  inadmissible  for  that  purpose.^^  But  where  the  chastity  of 
the  prosecutrix  has  been  impeached  by  evidence  of  specific  acts  this, 
it  seems,  may  be  rebutted  not  only  by  direct  evidence  to  the  contrary, 
but  also  by  evidence  of  good  reputation,  and  testimony  that  the  prose- 
cuting witness  was  a  woman  of  good  character  and  good  repute  for 
some  time  prior  to  the  alleged  seduction,  has  been  held  admissible  as 
tending  to  establish  previous  chaste  character.^*  Witnesses  who  knew 
the  prosecuting  witness  well  and  were  neighbors  may  testify  that  they 
never  heard  anything  against  her  character  for  chastity,  and  that  her 
reputation  therefor  was  good.^^  It  has  also  been  held  that  the  prose- 
cutrix; herself  may  testify  to  her  previous  virtue.^"  So,  on  the  other 
hand,  her  own  declarations  and  admissions  have  been  held  competent 
to  show  her  prior  unchastity  when  they  relate  to  her  prior  acts,  al- 
though made  after  the  alleged  seduction. ^^  It  has  also  been  held  that 
the  defendant  may  show  that  no  pain  was  inflicted  on  the  prosecutrix, 

"Polk  V.   State,   40   Ark.    482,   48  in  next  to  last  note  supra;   State  v. 

Am.  R.  17;  People  v.  Clark,  33  Mich.  Shean,  32  Iowa  88. 
112;   see.  State  v.  Payson,  71  Iowa        -'People  v.  Samonset,  97  Cal.  448, 

542,    32    N.    W.    484;    but    compare,  32  Pac.  520;  Smith  v.  State,  107  Ala. 

State  v.  Bryan,  34  Kans.  63,  8  Pac.  139,  18   So.   306;    State  v.  Deitrick, 

2C0;  State  v.  Brassfield,  81  Mo.  151,  51  Iowa  467,  1  N.  W.  732;   State  v. 

State  V.  Bryan,  34  Kans.  63,  8  Pac.  Dunn,    53    Iowa   526,    5   N.   W.    707, 

51  Am.  R.  234;    (overruled,  State  v.  holds  that  conduct  eight  years  prior 

Patterson,    88    Mo.    88,    57    Am.    R.  to  the  alleged  seduction  is  inadmis- 

374;)   Safford  v.  People,  1  Park.  Cr.  sible  to   prove  her  unchaste;    State 

Cas.  (N.  Y.)  474.  v.  Hemm,  82  Iowa  609.  48  N.  W.  971. 

^  State    v.    Sutherland,    30    Iowa         ="  State  v.  Bryan,  34  Kans.  63,  S 

570;  but  see,  Polk  v.  State,  40  Ark.  Pac.  260;  State  v.  Deitrick,  51  Iowa 

482,  48  Am.  R.  17.  467,  1  N.  W.  732;  State  v.  Branden- 

=«See  Vol.  I,  §§  171,  176.  burg,  118  Mo.  181,  23  S.  W.  1080,  40 

=^Kenyon  v.  People,  26  N.  Y.  203,  Am.  St.  362. 
84   Am.   Dec.   177;    State  v.   Patter-        ^^Kenyon  v.  People,  26  N.  Y.  203, 

son,  88  Mo.  88,  57  Am.  R.  374;  State  208. 

V.   Prizer.   49   Iowa   531.   31   Am.   R.         "State  v.   demons,  78   Iowa   123, 

155;   State  v.  Reinheimer,  109  Iowa  42  N.  W.  562. 
624,  80  N.  W.  669;   and  authorities 


§  3146.]  SEDUCTION.  468 

that  there  -was  no  laceration  and  blood,  as  these  are  the  natural  and 
ordinary,  although  not  the  invariable,  results  of  the  first  act  of  copu- 
lation with  a  virgin,  and  their  absence  tends  to  show  that  she  was  not 
a  chaste  virgin,  and  hence  not  the  subject  of  seduction  under  the 
statutes.^- 

'  §  3146.  Reputation. — As  shown  in  the  last  preceding  section, 
where  the  prosecutrix  must  be  of  previous  chaste  character,  as  dis- 
tinguished from  reputation,  evidence  of  the  general  reputation  of  the 
prosecuting  witness  for  chastity  is  not  admissible.  Character  for 
chastity  means  actual  personal  virtue  and  not  mere  reputation.''  The 
term  "character"  means  that  which  the  woman  really  is  rather  than 
what  she  may  be  reputed  to  be.^^  Proof  of  actual  sexual  intercourse 
is  not  always  necessary,  however,  to  establish  unehastity  sufficient  to 
prevent  a  conviction,  but  there  is  some  difterence  of  opinion  as  to 
just  what  is  sufficient  to  constitute  chastity  or  unehastity  within  the 
meaning  of  the  statutes. ^^  In  those  states  where  the  words  "chaste 
repute"  or  "good  repute"  are  used  instead  of  "chaste  character"  no 
presumption  in  favor  of  the  woman  exists,  but  the  state  must  affirma- 
tively prove  her  reputation.^''  The  prosecutrix's  reputation  for  chas- 
tity is  what  the  people  who  know  her  well  generally  say  of  her  credit 
and  standing  for  chastity.  In  such  a  case  it  is  held  competent  to 
show  by  her  neighbors  and  those  acquainted  with  her  that  they  have 

^-  Barnes  v.  State,  37  Tex.  Cr.  App.  ^  See,  Andre  v.  State,  5  Iowa  389, 

320,  39  S.  W.  684.  68  Am.  Dec.  708;  Wood  v.  State,  48 

"=  State  V.  Prizer,  49  Iowa  531,  31  Ga.  192,  15  Am.  R.  664;    Powell  v. 

Am.    R.    155;    People    v.    Clark,    33  State,    (Miss.)    20   So.   4;    People  v. 

Mich.  112;   Hussey  v.  State,  86  Ala.  Kehoei  123  Cal.  224,  55  Pac.  911,  69 

34,  5  So.  484;    State  v.  Wheeler,  94  Am.  St.  52;   State  v.  Brinkhaus,  34 

Mo.  252,  7  S.  W.  103,  holds  that  "re-  Minn.  285,  25  N.  W.  642;  Creighton 

piite"   in   an   indictment  for   seduc-  v.  State,  41  Tex.  Cr.  App.  101,  51  S. 

tion,  is  not  limited  to  the  female's  W.  910;  O'Neill  v.  State,  85  Ga.  383, 

reputation    for    chastity    or    to    the  11  S.  E.  856,  76  Am.  St.  679,  note, 

esteem  in  which  she  is  held  gener-  ^^  Oliver    v.    Commonwealth,    101 

ally   for   chastity   in   the   neighbor-  Pa.  St.  215,  47  Am.  R.  704;  Zabriskie 

hood    where    she    resides    or    with  v.  State,  43  N.  J.  L.  640,  39  Am.  R. 

whom  she  is  associated.  610;   State  v.  Bryan,  34  Kans.  63,  8 

^  State  V.  Brassfield,  81  Mo.  151,  Pac.  260;   State  v.  Wheeler,  94  Mo. 

51  Am.  R.  234;  People  v.  Brewer,  27  252,  7  S.  W.  103;  State  v.  McCaskey, 

Mich,  134;    Andre  v.  State,   5   Iowa  104  Mo.  644,  16  S.  W.  511;   State  v. 

389,  68  Am.  Dec.  708;  Boak  v.  State,  Sharp,  132  Mo.  165,  33  S.  W.  795. 
5  Iowa  430;  State  v.  Prizer,  49  Iowa 
531,  31  Am.  R.  155. 


469 


REFORMATION — PROMISE   OF    MARRIAOK.  [^§    3147,    3148. 


never  heard  her  concliict  questioned,  criticized  or  talked  about,  as  the 
best  character  is  the  one  least  talked  about."  And  evidence  of  the 
woman's  reputation,  instead  of  specific  acts  of  lewdness,  is  admissible 
under  such  statutes.^^ 

§  3147.  Reformation. — The  prosecutrix  may  sliow  a  reformation 
upon  her  part  even  though  she  was  at  one  time  unchaste.^®  She  may- 
show  that  at  the  time  of  the  alleged  seduction  she  was  a  virtuous 
woman,""  living  as  such,  but  where  only  a  short  time  has  intervened 
since  the  prosecutrix  was  unchaste,  clear  and  convincing  evidence  is 
said  to  be  necessary."^  The  burden  in  such  a  case  is  held  to  be  upon 
the  prosecution  to  show  the  reformation." 

§  3148.  Promise  of  marriage. — There  can  ordinarily  be  no  seduc- 
tion unless  some   promise  or  artifice  is  proved,*^   and  this  promise 


^^  State  V.  Bryan,  34  Kans.  63,  8 
Pac.  260;  State  v.  Patterson,  88  Mo. 
88,  57  Am.  R.  374. 

^  Bowers  v.  State,  29  Ohio  St.  542; 
Williams  v.  State,  3  Ind.  App.  350, 
354,  29  N.  E.  1079;  State  v.  Brass- 
field,  81  Mo.  151,  51  Am.  R.  234; 
State  v.  Sharp,  132  Mo.  165,  33  S. 
W.  795;  State  v.  Atterberry,  59 
Kans.  237,  52  Pac.  451;  see  also, 
Vol.  I,  §  171;  People  v.  Brewer,  27 
Mich.  134;  Boyce  v.  People,  55  N. 
Y.  644. 

^^  State  V.  Carron,  18  Iowa  372,  87 
Am.  Dec.  401;  and  note.  State  v. 
Moore,  78  Iowa  494.  43  N.  W.  273; 
State  v.  Knutson,  91  Iowa  549,  60 
N.  W.  129;  People  v.  Clark,  33  Mich. 
112;  see  also,  Wilson  v.  State,  73 
Ala.  527,  533;  Patterson  v.  Hayden, 
17  Ore.  238,  21  Pac.  129,  11  Am.  St. 
822;  Bowers  v.  State,  29  Ohio  St. 
542,  545;  Williams  v.  State,  3  Ind. 
App.  350,  29  N.  E.  1079;  Bishop 
Stat.  Crimes,  §  639;  State  v.  Sharp, 
132  Mo.  165,  33  S.  W.  795;  Kelly  v. 
State,  33  Tex.  Cr.  App.  31,  24  S.  W. 
295. 
^'Kenyon  v.  People,  26  N.  Y.  203, 


84  Am.  Dec.  177;  State  v.  Moore,  78 
Iowa  494,  43  N.  W.  273;  State  v. 
Carron,  18  Iowa  372,  87  Am.  Dec. 
401;  Wood  v.  State,  48  Ga.  192,  IS 
Am.  R.  664;  State  v.  Brassfield,  81 
Mo.  151,  51  Am.  R.  234;  State  v. 
Timmens,  4  Minn.  325. 

"  People  V.  Squires,  49  Mich.  487, 
13  N.  W.  828;  People  v.  Clark,  33 
Mich.  112;  People  v.  Millspaugh,  11 
Mich.  278,  holds  that  a  man  may  be 
prosecuted  for  seduction  at  any  time 
within  one  year  of  such  last  inter- 
course. 

*=  People  V.  Squires,  49  Mich.  487, 
13  N.  W.  828;  People  v.  Clark,  33 
Mich.  112. 

«  State  V.  Hemm,  82  Iowa  609,  48 
N.  W.  971;  State  v.  Fitzgerald.  63 
Iowa  268,  19  N.  W.  202;  State  v. 
Horton.  100  N.  Car.  443,  6  S.  E.  238. 
6  Am.  St.  613;  State  v.  Crawford, 
34  Iowa  40;  People  v.  Clark.  33 
Mich.  112;  O'Neill  v.  State.  85  Ga. 
383,  11  S.  E.  856;  Jones  v.  State,  90 
Ga.  616,  16  S.  E.  380;  McTyier  v. 
State,  91  Ga.  254.  18  S.  E.  140;  State 
V.  Heatherton,  60  Iowa  175,  14  N. 
W.   230. 


§  3148.]  SEDUCTIONS  470 

may  be  shown  by  the  conversation  and  what  was  said,**  the  circum- 
stances surrounding  the  act  and  other  acts  or  incidents  which  would 
tend  to  show  a  promise.*^  The  consent  of  the  female  to  marry  her 
seducer  may  be  implied  from  the  circumstances.*'^  Evidence  of  the 
declarations  of  the  defendant,  about  the  time  of  the  alleged  seduction 
that  he  intended  to  marry  the  prosecuting  witness,  is  also  admissible 
as  tending  to  show  a  promise,*^  and  corroborate  the  prosecutrix  upon 
that  point.  It  is  not  necessary  that  the  promise  be  technically  valid 
if  it  was  relied  upon  by  the  woman.*^  But  where  the  woman  does  not 
rely  upon  the  promise,  as  where  she  knows  the  defendant  to  be  a  mar- 
ried man  at  the  time  of  the  seduction,  then  in  that  case  no  conviction 
can  be  had.*^  The  state  need  not  show  a  renewal  of  the  promise  at 
the  time  of  the  seduction,^*'  and  the  promise  may  have  been  made 
some  time  prior  to  the  act.^^  The  defendant's  good  faith  at  the  time 
of  committing  the  offense  or  his  honest  intention  cannot  ordinarily 
be  shown  as  a  defense  to  the  action. ^^  An  act  of  intercourse  induced 
simply  by  mutual  desire  of  the  parties  to  gratify  sexual  passion  is  not 
seduction.^^  The  state  must  show  a  reliance  upon  such  promise  and 
that  the  act  was  accomplished  because  of  such  promise.^*     This  may 

**  State    v.    Brinkhaus,    34    Minn,  to   prove  no   promise.     Callahan  v. 

285,  25  N.  W.  642.  State,  63  Ind.   198,  30  Am.  R.  211; 

"People  V.  Kane,  14  Abb.  Pr.  (N.  Wood  v.  State,  48  Ga.  192,  15  Am, 

Y.)   15.  R.  664. 

"Kenyon  v.  People,  26  N.  Y.  203,  ""State  v.  Brassfleld,  81  Mo.   151, 

84  Am.  Dec.  177;  People  v.  Kane,  14  51  Am.  R.  234. 

Abb.    Pr.     (N.    Y.)    15;    Wilson    v.  "Armstrong  v.   People,   70   N.   Y. 

State,  58  Ga.  328.  38. 

"  Munkers  v.  State,  87  Ala.  94,  6  "  People  v.  Samonset,  97  Cal.  448, 

So.   357;    McTyier  v.   State,   91   Ga.  32    Pac.    520;    State    v.    Pierce,    27 

254,  18  S.  E.  140.  Conn.  319. 

*« People  V.  Wallace,  109  Cal.  611,  "O'Neill  v.  State,  85  Ga.  383,  11 

42   Pac.  159;    Kenyon  v.   People,   26  S.    E.    856;    People  v.    De   Fore,    64 

N.  Y.  203,  84  Am.  Dec.  177;    Boyce  Mich,  693,  31  N.  W.  585,  8  Am.  St. 

V.    People,   55    N.    Y.    644;    State    v.  863;  State  v.  Cochran,  10  Wash.  562, 

Adams,  25  Ore.  172,  35  Pac.  36,  42  39   Pac.    155;    Putnam   v.   State,   29 

Am.  St.  790.  Tex.  App.  454,  16  S.  W.  97,  25  Am. 

*"  State  v.  Brown,  86  Iowa  121,  53  St.    738. 

N.  W.  92,  holds  that  the  defendant's  ^  State    v.    Brinkhaus,    34    Minn, 

engagement  to  a  third  party  which,  285,  25  N.  W.  642;  Carney  v.  State, 

at  the  time  of  the  alleged  seduction,  79  Ala.  14;  Phillips  v.  State,  108  Ind. 

was  known  to  the  prosecutrix,  may  406,  9  N.  E.  345;  State  v.  Eekler,  106 

be  shown,  as  a  circumstance  tending  Mo.  585,  17  S.  W.  814,  27  Am.   St. 


471 


RES  GESTAE. 


[§  3149. 


be  contradicted  and  the  defendant  may  show  that  the  girl  did  not  rely 
upon  the  promise,  and  this  is  sometimes  done  by  showing  other  acts 
of  intercourse  in  which  there  was  no  promise.^®  It  has  been  held  no 
defense  that  the  promise  to  marry  was  secured  because  of  the  inter- 
course.^" It  is  said  that  the  offense  consists  in  having  illicit  connec- 
tion under  promise  of  marriage,  and  that  it  is  enough  that  a  promise 
was  made  which  was  a  consideration  for  or  inducement  to  the  inter- 
course.^'^ But  there  are  well  considered  authorities  to  the  effect  that 
a  promise  conditioned  on  pregnancy  resulting  from  the  intercourse 
is  insuificient.^^  There  is  some  question  as  to  whether  the  woman 
may  testify  that  she  yielded  because  of  a  promise  of  marriage,  but  the 
better  opinion  seems  to  be  that  she  may  so  testify.^^ 

§  3149.     Ees  gestae. — The  conduct  and  statements  of  the  parties 

immediately  before  and  after  and  at  the  time  of  the  alleged  seduction 
may  generally  be  shown  as  explanatory  and  as  part  of  the  res  gestae.^" 
But  evidence  of  preparations  made  by  the  prosecutrix  for  marriage 
to  the  defendant  is  not  admissible  as  part  of  the  res  gestae."^  The  con- 
trary view  seems  to  be  taken  by  Mr.  Underbill,*'-  but  if  he  means  to 


372;  see  also,  Putnam  v.  State,  29 
Tex.  App.  454,  16  S.  W.  97,  25  Am. 
St.  738;  McCullar  v.  State,  36  Tex. 
Cr.  App.  213,  36  S.  W.  585,  61  Am. 
St.  847. 

==  State  V.  Brassfield,  81  Mo.  151, 
51  Am.  R.  234;  Bowers  v.  State,  29 
Ohio  St.  542. 

«=  Callahan  v.  State,  63  Ind.  198, 
30  Am.  R.  211;  Kenyon  v.  People, 
26  N.  Y.  203,  84  Am.  Dec.  177;  Phil- 
lips V.  State,  108  Ind.  406,  9  N.  E. 
345;   Boyce  v.  People,  55  N.  Y.  644. 

"Callahan  v.  State,  63  Ind.  198, 
30  Am.  R.  211;  Bishop  Stat.  Crimes, 
§  639;  see  also.  State  v.  O'Hare, 
(Wash.)  79  Pac.  39;  State  v. 
Hughes,  106  Iowa  125,  76  N.  W.  520, 
68  Am.  St.  288. 

°^  People  v.  Van  Alstyne,  144  N.  Y. 
361,  76  N.  E.  520;  People  v.  Ryan, 
63  App.  Div.  (N.  Y.)  429,  71  N.  Y. 
S.  527;  State  v.  Adams.  25  Ore.  172, 
35  Pac.  36,  42  Am.  St.  790,  22  L.  R. 
A.  840. 

="  Ferguson  v.  State,  71  Miss.  805, 


15  So.  66,  42  Am.  St.  492;  Kenyon 
V.  People,  26  N.  Y.  203,  84  Am.  Dec. 
177;  Armstrong  v.  People,  70  N.  Y. 
38;  State  v.  Brinkhaus,  34  Minn. 
285,  25  N.  W.  642. 

""Wood  V.  State,  48  Ga.  192,  15 
Am.  R.  664;  State  v.  Curran,  51 
Iowa  112,  49  N.  W.  1006;  Lewis  v. 
People,  37  Mich.  518;  see  also.  State 
V.  Bess,  109  Iowa  675,  81  N.  W.  152; 
State  V.  Eisenhour,  132  Mo.  140,  33 
S.  W.  785;  Armstrong  v.  People,  70 
N.  Y.  38;  Harvey  v.  Territory,  11 
Okla.  156,  35  Pac.  837,  as  to  acts  and 
conduct  and  the  like  tending  to  cor- 
roborate the  prosecutrix. 

•"  State  V.  Lenihan,  88  Iowa  670, 
56  N.  W.  292;  State  v.  Buxton,  89 
Iowa  573,  57  N.  W.  417;  Cooper  v. 
State,  90  Ala.  641,  8  So.  821,  24  Am. 
St.  934;  People  v.  Tibbs,  143  Cal. 
100.  76  Pac.  904. 

« Underbill  Cr.  Ev.,  §§  388,  390; 
see  also,  State  v.  Timmens,  4  Minn. 
325. 


§§  3150,  3151.]  SEDUCTION.  472 

state  that  such  evidence,  and  that  of  consultation  by  her  with  her 
parents  regarding  preparations  for  the  wedding,  can  be  shown  against 
the  defendant  when  the  latter  had  no  part  therein  and  no  knowledge 
thereof,  the  statement  seems  to  be  clearly  erroneous,  and  it  is  criticized 
in  a  recent  case  wherein  it  is  held  that  such  evidence  is  no  part  of  the 
res  gestae,  and  comes  clearly  within  the  rule  excluding  acts  and 
declarations  merely  self-serving  and  of  a  hearsay  nature. ^^ 

§3150.  Admissions. — The  defendant's  admissions  may  be  used 
against  him.*'*  The  boasts  of  the  defendant  to  his  friends  that  he  was- 
guilty  of  illicit  intercourse  with  the  prosecutrix  may  be  shown  to 
prove  the  act,  and  the  circumstances  under  which  the  admissions  were 
made  may  be  brought  before  the  jury  as  tending  to  show  deceptive 
practices  and  the  true  circumstances  by  which  consent  was  obtained.^^ 
It  has  also  been  said  that  the  essential  elements  of  the  crime  may  be 
proved  by  the  admissions  of  the  defendant  himself,  including  the 
chaste  character  of  the  female  and  the  means  by  which  the  seduction 
was  accomplished.^^  But  where  the  only  direct  evidence  introduced 
to  prove  the  crime  consisted  of  the  testimony  of  the  female,  a  mere 
admission  by  the  defendant  that  the  prosecuting  witness  was  a  good 
girl  and  that  he  intended  to  make  her  his  wife  was  held  not  to  be  a 
sufficient  corroboration  of  her  testimony."  Letters  of  the  defendant 
are  admissible,  in  a  proper  case,  which  tend  to  criminate  him.^«  This 
is  true  even  where  they  were  written  after  the  commission  of  the  al- 
leged offense,  if  they  are  first  shown  to  be  the  defendant's  letters.^* 
In  both  of  the  cases  cited  in  the  last  note  below  the  letters  were  writ- 
ten by  the  defendant  to  the  prosecutrix  after  the  alleged  seduction. 

§3151.  Circumstantial  evidence. — Circumstantial  evidence  is 
competent  in  prosecutions  for  seduction  as  in  other  cases.  Evidence 
of  the  conduct  of  defendant  toward  the  prosecutrix  before  and  even 

»3  People    V.    Tibbs,    143    Cal.    100,  ^  Phillips  v.  State,  108  Ind.  406,  & 

76  Pac.  904.  N.  E.  345. 

8*  State  V.   Hill,  91  Mo.   423,   4  S.  "La  Rosae  v.  State,  132  Ind.  219, 

W.    121;    Hausenfluck    v.    Common-  SI  N.  E.  798. 

wealth,  85  Va.  702.  8  S.  E.  683;  State  "'  State  v.  Bell,  79  Iowa  118,  44  N. 

V.  Fitzgerald,  63  Iowa  268,  19  N.  W.  W.  244;   Bracken  v.  State,  111  Ala. 

202.  68,  20  So.  636,  56  Am.  St.  23. 

8=  State  V.   Hill,  91   Mo.   423,  4   S.  <'^  Bracken  v.  State,  111  Ala.  68,  2a 

W.  121;  State  v.  McClintic,  73  Iowa  So.  636,  56  Am.  St.  23;   McTyier  v. 

663,  35  N.  W.  696;   Bailey  v.  State,  State,  91  Ga.  254,  18  S.  E.  140. 
(Tex.  Cr.  App.)   30  S.  W.  669. 


473  CIRCUMSTANTIAL  EVIDENCE.  [§    3151. 

after  the  seduction  may  be  admitted  to  show  whether  the  consent  to 
the  act  was  accomplished  by  means  of  persuasion  or  promiseJ**  The 
age,  experience,  artfulness,  or  innocent  and  confiding  nature  of  the 
prosecutrix  may  be  taken  into  consideration.''^  Evidence  that  defend- 
ant committed  or  procured  an  abortion  has  been  held  admissible  on  the 
trial  as  tending  to  prove  guilt. '^^  It  has  also  been  held  that  evidence 
which  shows  the  animus  of  the  prosecuting  witness  and  that  the  prose- 
cution is  spite  work  may  be  introduced. ^^  Pregnancy  and  the  birth 
of  a  child  of  course  show  intercourse,  and  illicit  intercourse,  if  the 
woman  is  unmarried,  and  they  may  tend,  at  least  with  other  evidence, 
to  show  that  she  was  seduced,^*  but  they  do  not  of  themselves  tend  to 
show  that  the  defendant  was  the  seducer."  This,  however,  may  be 
shown  by  circumstantial  evidence,  such  as  that  of  opportunity  and  the 
relation  and  conduct  of  the  parties.''®  In  a  recent  case  testimony  that 
the  mother  of  the  prosecutrix  was  dead  and  that  the  defendant  was 
the  father  of  her  child  was  held  relevant,  and  the  court  said  that  the 
fact  that  the  mother  was  dead  was  admissible  to  show  the  situation 
and  environment  of  the  prosecutrix,  "and  to  what  extent  she  was  pro- 
tected or  subject  to  the  persuasions  of  the  defendant.  So,  too,  as  to 
the  evidence  relating  to  the  paternity  of  the  child.  The  fact  of  its 
birth  was  a  circumstance  in  proof  of  the  fact  that  there  had  been 

'"State  V.  Curran,  51  Iowa  112,  49  ton,   100   N.   Car.   443,   6   S.   E.    232, 

N.    W.    1006;     State    v.    Hayes,    105  6  Am.  St.  613. 

Iowa    82,    74    N.    W.    757;    State    v.         "  State  v.  Coffman,  112  Iowa  8,  83 

Hemm,  82  Iowa  609,  48  N.  W.  971;  N.    W.    721;    State   v.    McGinn,    109 

Powell  V.  State,    (Miss.)    20   So.   4;  Iowa  641,  SO  N.  W.  1068;  Armstrong 

Lewis  V.  People,  37  Mich.  518.  v.  People,  70  N.  Y.  38. 

"People   V.   Gibbs,   70    Mich.   425,         •«  Polk   v.    State,   40   Ark.   482,    48 

38  N.  W.  257;    State  v.  Higdon,  32  Am.  R.  17;  Armstrong  v.  People,  70 

Iowa  262.  N.  Y.  38;  State  v.  Thornton,  108  Mo. 

"  State  V.  Kavanaugh,  133  Mo.  452,  640,  18  S.  W.  841;   Bailey  v.  State, 

33  S.  W.  33,  34  S.  W.  842;  People  v.  36  Tex.  Cr.  App.  540,  38  S.  W.  185. 

Orr,  92  Him    (N.  Y.)    199,  36  N.  Y.  As  to  whether  the  child  may  be  ex- 

S.  398,  affirmed  in  149  N.  Y.  616,  44  hibited  to  jury,  see.  People  v.  Tibbs, 

N.  E.  1127.  143  Cal.  100,  76  Pac.  904;    State  v. 

■'^  State  V.  Reeves,  97  Mo.  668,  10  Horton,  100  N.  Car.  443,  6  S.  E.  238, 

S.  W.  841,  10  Am.  St.  349;  see  also,  6  Am.  St.  613;  and  compare,  Barnes 

State  V.  Eckler,  106  Mo.  585,  17   S.  v.  State,  37  Tex.  Cr.  App.  320,  39  S. 

W.   814,  27   Am.  St.  372;    People  v.  W.  684;    State  v.  Clemons,  78  Iowa 

Clark,  33  Mich.  112.  123,  42  N.  W.  562;    State  v.  Brass- 

"  State   V.    Coffman,    112    Iowa    8,  field,    81   Mo.   151,   51   Am.   R.    234; 

83  N.  W.  721;   see  also,  Armstrong  Cunningham  v.  State,  73  Ala.  51. 
V.  People,  70  N.  Y.  38;  State  v.  Hor- 


§  3152.] 


SEDUCTION. 


474 


sexual  intercourse.     This  had  to  be  established  before  there  could  be 
anv  conviction  for  seduction."^'^ 


§  3152.  Corroboration. — The  statutes  of  many  states  have  estab- 
lished certain  rules  of  corroboration  necessary  before  a  conviction  can 
be  had  for  seduction.  The  rules  vary  to  such  an  extent  that  the  stat- 
utes must  be  consulted  in  each  state. '^^  Some  states  seem  to  require 
a  corroboration  of  every  material  fact/°  others  a  corroboration  of  the 
illicit  intercourse  and  promise^**  and  some  of  the  promise  alone.^^ 
Several  states  require  corroboration  to  the  same  extent  as  in  perjury 
cases.^^  It  is  generally  recognized  that  direct  and  positive  proof  is 
seldom  obtainable,  and  the  courts  allow  a  wide  range  of  circumstantial 
evidence  to  corroborate  the  evidence  of  the  prosecutrix.^^  Where  the 
statute  simply  requires  corroboration  without  specifically  stating  upon 
what  points  or  to  what  extent  it  is  sometimes  said  that  she  must  be 
corroborated  on  every  material  point/*  but  unless  the  phrase  "every 
material  point"  is  given  a  restricted  meaning  the  better  rule  seems  to 


"Pike  V.  State,  (Ga.)  49  S.  E. 
680. 

'» State  V.  Kingsley,  39  Iowa  439; 
State  v.  McCaskey,  104  Mo.  644,  16 
S.  W.  511;  State  v.  Curran,  51  Iowa 
112,  49  N.  W.  1006;  State  v.  Smith, 
54  Iowa  743,  7  N.  W.  402. 

"Andre  v.  State,  5  Iowa  389,  68 
Am.  Dec.  708;  State  v.  Kingsley,  39 
Iowa  439;  Hunkers  v.  State,  87  Ala. 
94,  6  So.  357. 

^^  State  v.  Bauerkemper,  95  Iowa 
562,  64  N.  W.  609;  State  v.  McCas- 
key, 104  Mo.  644,  16  S.  W.  511;  Ken- 
yon  V.  People,  26  N.  Y.  203,  84  Am. 
Dec.  177;  People  v.  Kearney,  110  N. 
Y.  188,  17  N.  E.  736;  State  v.  Fer- 
guson, 107  N.  Car.  841,  12  S.  E.  574; 
State  v.  Crawford,  34  Iowa  40;  State 
V.  Araah,  55  Iowa  258,  7  N.  W.  601. 

«^  State  v.  Brassfield,  81  Mo.  151, 
51  Am.  R.  234;  State  v.  McCaskey, 
104  Mo.  644,  16  S.  W.  511;  Rice  v. 
Commonwealth,  100  Pa.  St.  28; 
State  v.  Hill,  91  Mo.  423,  4  S.  W. 
121. 

82  Burns  Ind.  Rev.  Stat.,  §  1876 ;  Za- 


briskie  v.  State,  43  N.  J.  L.  640,  39 
Am.  R.  610;  State  v.  Reeves,  97  Mo. 
668,  10  S.  W.  841;  La  Rosae  v. 
State,  132  Ind.  219,  31  N.  E.  798; 
Galloway  v.  State,  29  Ind.  442,  holds 
that  if  there  is  the  positive  testi- 
mony of  one  witness  to  the  charge 
of  false  swearing,  the  corroborating 
evidence  need  not  be  equivalent  to 
the  testimony  of  a  positive  witness. 

»^Polk  V.  State,  40  Ark.  482,  48 
Am.  R.  17;  Armstrong  v.  People,  70 
N.  Y.  38;  People  v.  Kearney,  110  N. 
Y.  188,  17  N.  E.  736;  State  v.  Cur- 
ran, 51  Iowa  112,  49  N.  W.  1006; 
State  V.  McClintic,  73  Iowa  663,  35 
N.  W.  696;  State  v.  Bell,  79  Iowa 
117,  44  N.  W.  244. 

^  State  v.  Timmins,  4  Minn.  325; 
State  V.  Lockerby,  50  Minn.  363,  52 
N.  W.  958,  36  Am.  St.  656;  Zabriskie 
V.  State,  43  N.  J.  L.  640,  39  Am.  R. 
610;  Andre  v.  State,  5  Iowa  389,  68 
Am.  Dec.  708;  see  also,  La  Rosae  v. 
State,  132  Ind.  219,  31  N.  E.  798; 
Hinkle  v.  State,  157  Ind.  237,  61  N. 
E.  196. 


475  CORROBORATION — DEFENSES.  [§    3153. 

be  that  it  is  sufficient  if  she  is  corroborated  as  to  the  fact  that  the  de- 
fendant had  sexual  intercourse  with  her  and  obtained  her  consent  by- 
promise  of  marriage  or  such  other  seductive  arts  as  the  statute  re- 
quires, but  there  must  be  corroboration  as  to  these  facts.^°  The  cor- 
roborative evidence  may  be  circumstantial*®  rather  than  direct,  but  it 
must  come  from  some  witness  other  than  the  prosecutrix  herself,®^ 
It  has  been  held  in  a  recent  case  that  testimony  of  a  witness  that  the 
defendant  told  him  that  he  had  promised  prosecutrix  to  marry  her 
was  a  sufficient  corroboration  of  the  marriage  promise.**  In  another 
recent  case  it  is  held  that  the  court  should,  on  request,  instruct  that 
the  prosecutrix  must  be  corroborated  by  other  witnesses  as  to  the 
promise  of  marriage  and  intercourse;  and  that  the  mere  reading  of 
the  statute,  with  the  statement  that  her  testimony  must  be  corrobo- 
rated, is  insufficient.*^ 

§  3153.     Defenses. — The    unchaste    character    of    the    prosecutrix 

where  the  statute  requires  previous  chaste  character,  or  her  bad  repute 

for  chastity  where  the  statute  requires  her  to  be  of  good  repute,  con- 

"  stitutes  a  good  defense,  and,  as  elsewhere  stated,  may  be  shown  by 

proper  evidence.^"    So,  it  may  be  shown  in  defense  that  she  voluntarily 

^Polk   V.    State,   40   Ark.    482,   48  S.  W.  785;   State  v.  Brown,  64  N.  J. 

Am.  R.  17;  Kenyon  v.  People,  26  N.  L.  414,  45  Atl.  800;   Bailey  v.  State, 

Y.  203,  84  Am.  Dec.  177;    People  v.  36  Tex.  Cr.  App.  540,  38  S.  W.  185; 

Kearney,   110   N.  Y.   188,   17   N.   E.  Wright  v.    State,  31   Tex.   Cr.  App. 

736;  Armstrong  v.  People,  70  N.  Y.  354,  20  S.  W.  756. 

38;  State  v.  Curran,  51  Iowa  112,  49  "State  v.  McGinn,  109  Iowa  641, 

N.  W.  1006;    State  v.  Crawford,  34  80  N.  W.  1068;  State  v.  Hill,  91  Mo. 

Iowa  40;    Harvey   v.    Territory,   11  423,  4  S.  W.  121;   Cooper  v.  State, 

Okla.  156,  65  Pac.  837;   Fergiison  v.  90  Ala.  642,  8  So.  821;   Munkers  v. 

State,  71  Miss.  805,  15  So.  66,  42  Am.  State,  87  Ala.  94,  6  So.  357;  Mills  v. 

St.    492;    see  also,   Suther  v.   State,  Commonwealth,  93  Va.  815,  22  S.  B. 

118  Ala.  88,  24  So.  43;  Cunningham  863;    McCullar   v.   State,    (Tex.    Cr. 

V.  State,  73  Ala.  51;  State  v.  Brown,  App.)    36  S.  W.  585. 

86  Iowa  121,  53  N.  W.  92;    State  v.  «^  State  v.  Phillips,  (Mo.)  83  S.  W. 

Bauerkemper,  95  Iowa  562,  64  N.  W.  1080;  but  see.  La  Rosae  v.  State,  132 

609;  State  v.  Brown,  64  N.  J.  L.  414,  Ind.  219,  31  N.  E.  798. 

45  Atl.  800,  87  Am.  Dec.  410,  note;  ^'^  Keaton  v.  State,  (Ark.)  83  S.  W. 

State  V.  Ferguson,  107  N.  Car.  841,  911. 

12   S.   E.   574;    Barker  v.   Common-  ""See,  Mrous  v.  State,  31  Tex.  Cr. 

wealth,  90  Va.  820,  20   S.  E.   776.  App.   597,   21    S.   W.    764;    Parks   v. 

«"  State    V.    Lauderbeck,    96    Iowa  State,  35  Tex.  Cr.  App.  378,  33  S.  W. 

258,  65  N.  W.  158;    State  v.  Brass-  872;   State  v.  demons,  78  Iowa  123, 

field,   81   Mo.   151,   51   Am.   R.    234;  42   N.    W.    562;    State   v.    Bige,    112 

State  V.  Eisenhour,  132  Mo.  140,  33  Iowa  433,  84  N.  W.  518;   Safford  v. 


§  3153.] 


SEDUCTION. 


476 


submitted  to  gratify  her  own  passion,®^  for  hire  or  the  like/-  and  not 
because  of  arts,  wiles  or  promise  of  marriage  by  the  defendant.  It  has 
also  been  held  that  the  defendant  may  show  that  he  was  married  or 
engaged  to  another  woman,  and  that  the  prosecutrix  knew  it,^^  or 
that  the  defendant  and  the  prosecutrix  had  illicit  intercourse  before 
the  time  of  the  alleged  promise  of  marriage,^'*  as  tending  to  show  that 
the  alleged  seduction  was  not  accomplished  through  a  promise  of  mar- 
riage. But  the  fact  that  the  prosecutrix  had  sexual  intercourse  with 
other  men  after  her  seduction  by  the  defendant  is  no  defense.**" 
Proper  evidence  legitimately  tending  to  show  that  the  defendant  was 
not  the  guilty  party,  or  to  show  the  absence  of  any  one  or  more 
of  the  essential  elements  of  the  crime  is,  however,  admissible  in  de- 
fense.''® In  many  jurisdictions  it  is  provided  by  statute  that  the  mar- 
riage of  the  seducer  and  the  woman  seduced  shall  constitute  a  bar  to 


People,  1  Park  Cr.  Cas.  (N.  Y.)  474, 
37  Am.  St.  834,  note;  see  also.  State 
V.  Thornton,  108  Mo.  640,  18  S.  W. 
841. 

^^  People  V.  Nelson,  153  N.  Y.  90, 
46  N.  E.  1040;  O'Neill  v.  State,  85 
Ga.  383,  11  S.  E.  856;  Keller  v.  State, 
102  Ga.  506,  31  S.  E.  92;  People  v. 
De  Fore,  64  Mich.  693,  31  N.  W.  585, 
8  Am.  St.  863,  and  note. 

^=See,  People  v.  Clark,  33  Mich. 
112;  State  v.  Fitzgerald,  63  Iowa 
268,  19  N.  W.  202;  State  v.  Reeves, 
97  Mo.  668,  10  S.  W.  841,  10  Am.  St. 
349;  Mrous  v.  State,  31  Tex.  Cr.  App. 
597,  21  S.  W.  764,  37  Am.  St.  834. 

°5  State  v.  Brown,  86  Iowa  121,  53 
N.  W.  92;  see  also,  Callahan  v. 
State,  63  Ind.  198.  But  note  that  he 
was  a  minor  too  young  to  make  a 
valid  marriage,  where  the  statutes 
make  no  limitation  as  to  the  age  of 
the  defendant.  State  v.  Brock, 
(Mo.)  85  S.  W.  595;  People  v.  Ke- 
hoe,  123  Cal.  224,  55  Pac.  911;  Ken- 
yon  V.  People,  26  N.  Y.  203,  84  Am. 
Dec.  177;  Harvey  v.  State,  (Tex.  Cr. 
App.)  53  S.  W.  102. 

'*  State  V.  Brassfield,  81  Mo.  151, 
51  Am.  R.  234;  Bowers  v.  State,  29 
Ohio  St.  542.     But  an  honest  inten- 


tion to  marry  where  the  promise 
was  made,  the  defendant  afterwards 
being  prevented  from  performing 
it,  has  been  held  no  defense.  People 
V.  Samonset,  97  Cal.  448,  32  Pac. 
520;  State  v.  Bierce,  27  Conn.  319; 
but  compare,  Caldwell  v.  State,  69 
Ark.  322,  63  S.  W.  59. 

°' Bracken  v.  State,  111  Ala.  68, 
20  So.  636;  Anderson  v.  State,  39 
Tex.  Cr.  App.  83,  45  S.  W.  15;  State 
V.  Gunagy,  84  Iowa  183,  50  N.  W. 
882.  So,  where  the  prosecutrix  had 
other  young  men  come  to  see  her 
after  the  alleged  seduction  has 
been  held  immaterial.  People  v, 
Tibbs,  143  Cal.  100,  76  Pac.  904;  see 
also.  People  v.  Wade,  118  Cal.  672, 
50  Pac.  841;  Smith  v.  State,  118  Ala. 
117,  24  So.  55;  State  v.  Abegglan, 
103  Iowa  50,  72  N.  W.  305;  but  com- 
pare, Keller  v.  State,  102  Ga.  506,  31 
S.  E.  92. 

^  Evidence  of  a  conspiracy  on  the 
part  of  the  prosecutrix  and  her  par- 
ents to  inveigle  the  defendant  into 
a  marriage  with  her,  and  failing 
in  that,  to  prosecute  him,  has  also 
been  held  admissible.  People  v. 
Clark,  33  Mich.  112. 


477  DEFENSES.  [§   3153. 

criminal  prosecution  for  such  seduction.  This  also  seems  to  be  the 
approved  rule  even  in  the  absence  of  such  a  statute  where  the  inter- 
course is  obtained  through  a  promise  of  marriage  and  the  promise  is 
kept  and  performed,  even  though  the  seducer  may  have  performed 
the  marriage  promise  to  avoid  a  criminal  prosecution."  But  this  doe- 
trine  is  denied  in  a  recent  case  in  Kansas,  and  it  is  there  held  that 
the  subsequent  marriage  of  the  parties  is  no  defense.®**  Under  a  stat- 
ute of  Arkansas  providing  that,  if  any  man  against  whom  a  prosecu- 
tion has  been  begun  for  seduction  shall  marry  the  female  alleged  to 
have  been  seduced,  the  prosecution  shall  not  be  terminated,  but  shall 
be  suspended,  provided  that  if,  at  any  time  thereafter,  the  accused 
shall  desert  such  female,  the  prosecution  shall  be  continued,  it  is 
held  that  a  prosecution  which  has  been  suspended  by  marriage  cannot 
be  renewed  upon  a  separation  by  mutual  consent  unless  the  wife  has 
offered  to  resume  the  marital  relation  and  her  offer  has  been  refused, 
but  that  the  prosecution  can  be  revived  if  her  consent  to  the  separation 
was  caused  by  wrongful  conduct  on  the  part  of  the  husband  with  the 
intention  of  forcing  her  to  agree  to  the  separation. ^'^ 

'■  State  V.  Otis,  135  Ind.  267,  34  N.  '^  Lewis,   In   re,   67  Kans.   562,   73 

E.  954,  21  L.  R.  A.  733;    People  v.  Pac.  77,  63  L.  R.  A.   281;   see  also, 

Gould,  70  Mich.  240,  38  N.  W.  232,  State  v.  Bierce,  27  Conn.  319.     That 

14  Am.   St.   493;    Commonwealth  v.  she  married  some  person  other  than 

Eichar,  4  Clark  (Pa.)  551;   2  Whar-  her  seducer  is  not  a  bar.     Dovviing 

ton  Cr.  Law,  §  1760;  2  Archbold  Cr.  v.  Crapo,  65  Ind.  209. 

PI.  Ev.  1825;  5  Lawson  Def.  Crimes,  "^Burnett  v.   State,    (Ark.)    81   S. 

780.  W.  382. 


CHAPTER    CLIV. 

TREASON, 

Sec.  Sec. 

3154.  Meaning  of  term.  3159.  No  accessories. 

3155.  Burden  of  proof.  3160.  Res  gestae. 

3156.  Two  witnesses  essential.  3161.  Other  overt  acts. 

3157.  Confession     of     treason — Cor-  3162.  Defenses. 

roboration.  3163.  Evidence  in  general. 

3158.  Levying  war.  3164.  Misprision  of  treason. 

§  3154.  Meaning  of  term. — Treason  is  a  breach  of  allegiance  to 
the  government,  or  the  offense  of  attempting  to  overthrow  the  gov- 
ernment to  which  the  offender  owes  allegiance;  or  of  betraying  the 
state  into  the  hands  of  a  foreign  power.  ^  The  constitution  of  the 
United  States  provides  that  treason  against  the  United  States  shall 
consist  only  in  levying  war  against  them,  or  in  adhering  to  their 
enemies,  giving  them  aid  and  comfort,  and  that  no  person  shall  be 
convicted  of  treason  unless  on  the  testimony  of  two  witnesses  to  the 
same  overt  act,  or  upon  his  confession  in  open  court.^  Most  of  the 
state  constitutions  also  contain  a  similar  provision  as  to  treason 
against  the  state.  And  it  is  declared  that  no  other  acts  can  be  de- 
clared to  constitute  the  offense,  against  the  United  States.  Congress 
can  neither  extend  nor  restrain  nor  define  the  crime. ^  So,  it  is  said 
that,  being  a  breach  of  allegiance,  it  can  be  committed  by  him  only  wdio 
owes  allegiance,  either  perpetual  or  temporary.*  What  constitutes 
levpng  war  against  the  government  is  a  question  which  has  been  the 
subject  of  much  discussion  whenever  an  indictment  has  been  tried 
under  this  article  of  the  constitution.  The  levying  of  war  is  not  nec- 
essarily to  be  judged  alone  by  the  number  or  array  of  troops,  but  there 
must  be  a  conspiracy  to  resist  by  force  and  an  actual  resistance  by  force 

1  See,   Respublica   v.   Chapman,    1         '  United    States   v.    Greathouse,   4 
Dall.  (U.  S.)  53;  Cranburne's  Trial,     Sawy.  (U.  S.)  457,  26  Fed.  Cas.  No. 
13  How.  St.  Tr.  221,  227;  Vaughan's     15254. 
Trial,  13  How.  St.  Tr.  485,  526.  '  Young  v.  United  States,  97  U.  S. 

*  Const.  U.  S.,  Art.  3,  §  17.  39. 

478 


479  BURDEN  OF  PROOF — NUMBER  OF  WITNESSES.       [§§    3155,    3156. 

of  arms,  or  intimidation  by  numbers.  The  conspiracy  and  insurrec- 
tion connected  with  it  must  be  to  effect  something  of  a  public  nature 
to  overthrow  the  government,  or  to  nullify  some  law  of  the  United 
States  and  totally  to  hinder  its  execution  or  compel  its  repeal.  A  con- 
spiracy to  resist  by  force  the  execution  of  a  law  in  particular  instances 
only,  a  conspiracy  for  a  personal  or  private,  as  distinguished  from  a 
public  and  national  purpose  is  not  treason  however  great  the  violence 
or  force  or  numbers  of  the  conspirators  may  be.  So,  where  a  number 
of  citizens  in  a  free  state  collected  together  to  prevent  the  enforcement 
of  the  fugitive  slave  law  and  the  return  of  the  escaped  slave  to  his 
master  in  a  slave  state,  the  question  whether  such  individuals  were 
levying  war  against  the  United  States  was  submitted  to  the  jury,  who 
found  for  the  defendants.^  In  most  of  the  several  states,  treason 
against  the  state  is  defined  in  the  same  words,  or  in  language  to  the 
same  effect;  and  the  same  amount  of  evidence  is  made  necessary  to  a 
conviction  as  by  the  federal  laws,  but  in  a  few  of  the  states  both  the 
crime  and  the  requisite  proof  are  described  with  other  qualifications.® 

§  3155.  Burden  of  proof. — The  burden  of  proof  is  on  the  prosecu- 
tion to  prove  the  crime  in  its  entirety.'^  And  since  a  treasonable  in- 
tention and  an  overt  act  are  requisite  components  of  treason,^  the 
burden  of  proof  to  establish  these  is  on  the  prosecution.''  Thus,  the 
burden  of  proof  is  on  the  prosecution  to  establish  that  the  accused 
owed  allegiance  and  fidelity  to  the  state  against  which  the  treason  was 
committed,  and  that  an  overt  act  was  committed  by  him.^°  In  other 
words,  it  must  be  proved  to  the  satisfaction  of  the  jury  that  the  crime 
in  its  entirety  was  committed  by  the  prisoner.^^ 

§  3156.  Two  witnesses  essential. — In  order  to  convict  of  treason 
there  must  be  at  least  two  witnesses,  and  all  other  evidence,  it  has  been 
said,  must  be  rejected  unless  the  overt  act  charged  is  proved  by  two 

•    ''Words  and  Phrases,  Vol.  8;    see  "United  States  v.  Burr,  4  Cranch 

also,    United    States    v.    Hanway,    2  (U.  S.)  470,  25  Fed.  Cas.  No.  14693. 

Wall.  Jr.    (U.  S.)    139,  26  Fed.  Cas.  ^"Lisbon  v.  Lyman,  49  N.  H.  553; 

No.  15299.  Reg.  v.  Frost,  9  Car.  &  P.  129,  38  E. 

*See  the  State  Constitutions.  C.  L.  87. 

^United    States   v.    Fries,    3    Dall.  "United   States  v.   Pries,   3    Dall. 

(U.  S.)  515,  9  Fed.  Cas.  No.  5126.  (U.  S.)    515,  9  Fed.  Cas.  No.  5126; 

^  United  States  v.  Hanway,  2  Wall,  see  also,  Reg.  v.  Frost,  9  Car.  &  P. 

Jr.   (U.  S.)   139,  169.  129,  38  E.  C.  L.  87;    United   States 

« United  States  v.  Mitchell,  2  Dall.  v.  Hanway,  2  Wall.  Jr.  (U.  S.)  139, 

(U.  S.)    348.  169. 


3156.] 


TREASON. 


•ISO 


witnesses.^^  This  rule,  it  seems  did  not  originally  obtain  at  common 
law,  but  was  introduced  by  statute  in  the  sixteenth  century,^  ^  and  re- 
enacted  in  later  statutes.  In  case  the  act  of  treason  is  that  of  levying 
war  it  is  held,  however,  that  one  witness  to  two  several  component 
parts  of  the  same  act  is  sufficient,  as  such  act  is  made  up  of  many 
separate  parts.  ^*  Our  constitution  expressly  provides  that  no  person 
shall  be  convicted  of  treason  unless  on  the  testimony  of  two  witnesses 
to  the  same  overt  act  of  treason  or  on  confession  in  open  court.^^  And 
the  statutes  recjuire  the  testimony  of  at  least  two  witnesses  in  order 
to  convict  one  of  treason.^**  But  two  witnesses  are  not  required  to 
show  the  intention;  the  constitution  only  requires  two  witnesses  to 
the  same  overt  act,  so  the  treasonable  design  or  intention  may  be  estab- 
lished in  other  ways."  Thus  the  treasonable  intention  may  be  estab- 
lished by  the  declaration  of  a  party  prior  to  or  during  the  commission 
of  a  treasonable  act.^^  So,  also,  by  a  single  fact  or  act.^^  And  also 
by  the  conduct  of  the  accused,  even  though  in  other  places.^**  Wliere 
it  is  shown  by  the  testimony  of  several  witnesses  that  the  accused  was 
present  and  participated  in  a  treasonable  conspiracy  it  has  been  held 
that  proof  by  two  or  more  witnesses  that  he  marched  as  a  volunteer 
with  arms  and  in  military  array,  with  a  party  which  actually  used 
force  to  prevent  the  execution  of  an  act  of  congress,  is  sufficient  with- 


"  United  States  v.  Burr,  4  Cranch 
(U.  S.)  470,  493,  25  Fed.  Cas.  No. 
14693. 

"  See,  Bishop  Fisher's  Trial,  1 
How.  St.  Tr.  395;  Foster  Crown  L. 
233;  State  Trials  for  Treason 
(Willis-Bund)  XXXIX;  Best  Ev., 
§§  616-619. 

"United  States  v.  Mitchell,  2 
Dall.  (U.  S.)  348. 

1=^  Const.   United    States,    Art.    Ill, 
§  3;  United  States  v.  Burr,  4  Cranch 
(U.    S.)     25    Fed.    Cas.    No.    14693 
United    States   v.    Greiner,   4    Phila 
(Pa.)    396,  26  Fed.  Cas.  No.  15262 
United  States  v.  Fries,  3  Dall.    (U 
S.)     515,     9    Fed.    Cas.     No.     5126 
United'  States  v.  Lee,  2  Cranch    (U. 
S.)    104;    Respublica  v.   McCarty,   2 
Dall.  (U.  S.)  86. 

"United  States  v.  Fries,  3  Dall. 
(U.  S.)   515,  9  Fed.  Cas.  No.  5126. 


"  United  States  v.  Fries,  3  Dall. 
(U.  S.)  515,  9  Fed.  Cas.  No.  5126; 
United  States  v.  Lee,  2  Cranch  (U. 
S.)    104. 

^'  Charge  to  Grand  Jury,  5  Blachf. 
(U.  S.)  549,  30  Fed.  Cas.  No.  18271; 
United  States  v.  Fries,  3  Dall.  (U. 
S.)   515,  9  Fed.  Cas.  No.  5126. 

1' United  States  v.  Fries,  3  Dall. 
(U.  S.)  515.  9  Fed.  Cas.  No.  5126; 
Reg.  v.  Davitt,  11  Cox  Cr.  Cas.  676; 
Rex  V.  Gordon,  2  Dougl.  590. 

=0  United  States  v.  Fries,  3  Dall. 
(U.  S.)  515,  9  Fed.  Cas.  No.  5126; 
United  States  v.  Burr,  4  Cranch 
(U.  S.)  470,  25  Fed.  Cas.  No.  14693. 
It  is  said,  however,  that  the  treason- 
able intention  must  be  clearly  and 
unequivocally  shown.  State  v.  Mc- 
Donald, 4  Port.  (Ala.)  449. 


481  CONFESSION   AND    CORROBORATION.       [§§    3157,    3158. 

out  proof  b}'  two  witnesses  that  he  was  actually  present  when  the  acts 
of  violence  were  done.-^ 

§  3157.  Confession  of  treason — Corroboration. — One  writer  thus 
states  the  rule  as  to  confession  of  treason :  "Because  the  statutory  re- 
quirement under  which  the  testimony  of  two  witnesses  to  an  overt  act 
was  necessary  to  convict  one  of  the  crime  of  treason,  it  was  at  one 
time  doubted  whether  an  extra  judicial  confession  was  admissible 
against  one  on  trial  for  the  commission  of  that  crime.  It  is  now  the 
law  that  while  no  one  can  be  convicted  of  treason  upon  his  confession 
not  made  in  open  court,  that  is,  by  a  plea  of  guilty  to  the  indictment, 
his  extra  judicial  confession  may  be  received  against,  and  the  con- 
fession itself  must,  to  be  admissible,  be  proved  by  two  witnesses."-^ 
But  if  an  overt  act  has  been  proved,  where  the  indictment  is  laid,  the 
defendant's  confession  may  be  given  in  evidence  to  corroborate  that 
proof,^^  and  it  has  been  held  that  when  an  overt  act  of  treason  has 
been  proved  by  two  witnesses  the  defendant's  confession  of  another 
species  of  treason  is  admissible  as  corroborating  the  same.^*  But  un- 
til the  overt  act  is  proved  by  two  witnesses  or  until  there  is  confession 
made  in  open  court,  evidence  in  corroboration  is  not  admissible.^^ 

§  3158.  Levying  war. — The  allegation  of  levying  war  by  an  armed 
assembly  may  be  established  by  testimony  showing  such  an  assemblage 
for  any  warlike  object  in  itself  amounting  to  an  actual  or  construc- 
tive levying  of  war,  such  as,  to  prevent  the  execution  of  a  public  law.-* 
It  is  an  act  of  levying  war  for  such  an  assemblage  to  compel  the  repeal 
of  a  law  or  to  alter  the  law  or  to  expel  all  the  citizens  or  subjects  of 
a  particular  country  or  nation."  In  case  the  charge  is  of  levying  war, 
it  is  not  necessary  to  prove  that  the  accused  was  actually  present  at 
the  perpetration  of  the  overt  act  charged ;  it  is  sufficient  to  prove  that 
he  was  constructively  present  on  that  occasion. 2**    "But  if  the  personal 

=»  United  States  v.  Mitchell,  2  Dall.  United  States  v.  Lee,  2  Cranch   (U. 

(U.  S.)   348.  S.)  104. 

«1   Underbill    Cr.    Ev.,    §    142;    1  =°  Fries' Trial,  196. 

Burr's  Trial  196.  =' Rex    v.    Gordon,    2    Doug.    590; 

=^Respublica   v.    Roberts,    1    Dall.  United  States  v.  Burr,  4  Cranch  (U. 

(U.  S.)   39;   Respublica  v.  McCarty,  S.)    470,    25    Fed.    Cas.    No.    14693; 

2  Dall.   (U.  S.)  86,  89.  United  States  v.  Greathouse,  2  Abb. 

"Respublica  v.   McCarty,   2   Dall.  (U.  S.)  364;  United  States  v.  Hoxie, 

(U.  S.)  86,  1  L.  Ed.  300.  1  Paine  (U.  S.)  265. 

=«  United  States  v.  Burr,  4  Cranch  ^  United  States  v.  Burr,  4  Cranch 

(U.  S.)  470,  25  Fed.  Cas.  No.  14693;  (U.  S.)  470,  25  Fed.  Cas.  No.  14693. 
Vol.  4  Elliott  Ev. — 31 


§3158.]  TREASON.  482 

co-operation  of  the  accused  in  the  general  enterprise  was  to  be  afford- 
ed elsewhere,  at  a  great  distance,  and  the  acts  to  be  performed  by  him 
were  distinct  overt  acts,  he  cannot  be  deemed  constructively  present 
at  any  acts,  except  those  to  which  the  part  he  acted  was  directly  and 
immediately  ancillary."^^    Upon  this  general  subject  it  has  been  said : 
"War  may  be  levied  not  only  by  taking  arms  against  the  government, 
but  under  pretense  of  reforming  religion  or  the  laws  or  of  removing 
evil  counsellors  or  others  grievances,  whether  real  or  pretended.     To 
resist  the  government  forces  by  defending  a  fort  against  them  is  levy- 
ing war,  and  so  is  an  insurrection  with  an  avowed  design  to  put  down 
all  enclosures,  all  brothels  or  the  like ;  the  universality  of  the  design 
making  it  a  rebellion  against  the  state  and  a  usurpation  of  the  power 
of  government.     But  a  tumult,  with  a  view  to  pull  down  a  particular 
house  or  lay  open  a  particular  enclosure  amounts  at  best  to  riot, 
there  being  no  defiance  of  public  government.     An  insurrection  to 
prevent  the  execution  of  an  act  of  congress  altogether  by  force  and 
intimidation  is  levying  war;  but  forcible  resistance  to  the  execution 
of  such  an  act  for  a  present  purpose,  and  not  for  a  purpose  of  a  pub- 
lic and  general  character,  does  not  amount  to  treason;  nor  does  the 
mere  enlistment  of  men  into  service.    There  must  be,  to  constitute  an 
actual  levy  of  war,  an  assemblage  of  persons  met  for  a  treasonable  pur- 
pose, and  some  overt  act  done,  or  some  attempt  made  by  them,  with 
force,  to  execute  or  toward  executing  that  purpose.    There  must  be  a 
present  intention  to  proceed  to  the  execution  of  the  treasonable  pur- 
pose by  force.    The  assembly  must  be  in  a  condition  to  use  force,  if 
necessary,  to  further,  or  to  aid,  or  to  accomplish  their  treasonable 
design.    If  the  assembly  is  arrayed  in  a  military  manner  for  the  ex- 
press purpose  of  overawing  or  intimidating  the  public,  and  to  attempt 
to  carry  into  effect  their  treasonable  designs,  that  will,  of  itself  amount 
to  a  levy  of  war,  although  no  actual  blow  has  been  struck  or  engage- 
ment has  taken  place.     So,  aiding  a  re1)ellion  by  fitting  out  a  vessel 
to  cruise  against  the  government  in  behalf  of  the  insurgents  is  levying 
war,  whether  the  vessel  sails  or  not.    So,  is  a  desertion  to,  or  voluntary 
enlistment  in  the  service  of  the  enemy."^°    And  where  the  indictment 

=^  United  States  v.  Burr,  4  Cranch  way,  2  Wall.  Jr.    (U.  S.)    139;   Boll- 

(U.   S.)    470,  494,   25   Fed.  Cas.   No.  man,  ex  parte,  4  Cranch  (U.  S.)  75; 

14693  Burr's  Trial,  401;   United  States  v. 

^"May    Cr.    Law,    §    136;     United  Greathouse,    2    Abb.     (U.    S.)     364; 

States  V.   Mitchell,  2   Dall.    (U.   S.)  United  States  v.  Hodges,  2  Wheeler 

348;  United  States  v.  Hoxie,  1  Paine  Cr.  Cas.    (N.  Y.)    477. 
(U.  S.)   265;   United  States  v.  Han- 


483  EES  GESTAE OVERT  ACTS.      [§§  SloO-^Kll. 

is  for  levying  war,  no  testimony  relative  to  the  conduct  or  dc^-larutions 
of  the  prisoner  elsewliere  and  subsequent  to  the  overt  act  charged  is 
competent  in  the  absence  of  proof  of  the  overt  act  by  two  witnesses.^* 

§  3159.  No  accessories. — In  treason,  all  the  participes  criminis 
are  principals.  Tliere  are  no  accessories  to  this  crime.  Every  act, 
which  in  the  case  of  felony,  would  render  a  man  an  accessory,  will, 
in  the  case  of  treason,  make  him  a  principal. ^^ 

§  3160.  Res  gestae. — As  in  other  cases  a  declaration,  made  at 
the  time  of  the  offense  was  committed  is  a  part  of  the  res  gestae,  and 
is  competent  with  proof  of  the  overt  act.^^  So  words  indicating  the 
prisoner's  intention  to  join  the  enemy,  are  proper  testimony  to  explain 
the  motives  upon  which  the  intent  was  afterward  carried  into  effect.^* 
And  where  defendant  was  actually  with  the  enemy  at  one  time,  words 
indicating  his  intention  to  join  them  may  be  shown,  though  uttered 
at  another  time.^°  So,  facts  occurring  and  rumors  prevalent  in  the 
neighborhood  which  would  explain  particulars  relied  upon  to  show 
treasonable  occurrence,  may  be  competent. ^^  But  where  it  appeared 
that  the  defendant  mistook  a  body  of  American  troops  for  British  and 
went  over  to  them  for  the  purpose  of  adhering,  it  was  held  that  evi- 
dence of  what  he  said  in  regard  to  his  purpose  was  not  admissible,  as 
words  do  not  amount  to  treason,  and  there  was  no  overt  act  which  they 
could  explain.^^ 

§  3161.  Other  overt  acts. — There  must  he  an  overt  act  to  consti- 
tute treason,  and  tlie  overt  act  charged  in  the  indictment  must  be 
proved,  and  not  some  other  distinct  act.  As  said  in  an  English  case,  '*'a 
distinct  overt  act  cannot  be  given  in  evidence  unless  it  relates  to  that 
which  is  alleged  or  conduces  to  the  proof  of  it.  But  if  it  conduce  to 
prove  the  overt  act  alleged,  it  is  good  evidence."^^     Thus,  for  the 

^'United  States  v.  Burr,  4  Cranch  ="Respublica  v.  Malin,  1  Dall.   (U. 

(U.  S.)  470,  25  Fed.  Cas.  No.  14693.  S.)    33. 

^==  Fries'  Trial,  198,  per  Chase,  J.;  ^'^ Respublica  v.  Malin,  1  Dall.    (U. 

see  also,  Reg.  v.  Meany,  10  Cox  Cr.  S.)   33. 

Cas.     506;     Trials    of     Twenty-nine  ="=  United  States  v.  Hanway.  2  Wall. 

Regicides,  5  How.  St.  Tr.  947;  United  Jr.   (U.  S.)  139. 

States  V.   Mitchell,   2   Dall.    (U.   S.)  "Respublica  v.  Malin,  1  Dall.   (U. 

348;    Homestead    Case,    1    Pa.    Dist.  S.)  33. 

Ct.  785.  =«Vaughan's  Case.  2  Salk.  634;  see 

^'  Respublica   v.    McCarty,   2   Dall.  also.  Burr's  Trial,  2  Robertson's  R. 

(U.  S.)   86.  481;    United  States  v.  Fries,  Whart. 


45 


§§  3162,  3163.]  TREASON.  484 

purpose  of  proving  the  traitorous  intention  with  which  an  overt 
act  was  committed,  it  is  held  that  evidence  of  other  overt  acts  of 
treason,  not  laid  in  the  indictment,  is  competent,  provided  there  is  no 
pending  prosecution  for  those  acts.^^  Evidence  has  been  admitted  of  an 
overt  act  of  treason  committed  in  another  county  after  an  overt  act 
is  proved  to  have  been  committed  in  the  county  where  the  indictment 
is  laid.*"  But  evidence  is  not  competent  that  the  accused  joined  in 
the  commission  of  a  distinct  felony  for  which  he  is  charged  in  another 
indictment,  there  being  no  evidence  that  there  was  a  treasonable  in- 
tent in  the  commission  of  the  felony.*^ 

§  3162.     Defenses. — Ignorance  of  the  law  is  no  defense  to  a  prose- 
cution for  treason.*^     ISTeither  is  voluntary  intoxication  a  good  de 
fense.*=^    And  the  same  has  been  held  as  to  insanity**  and  infancy 
where  there  is  ability  to  distinguish  between  right  and  wrong  and  the 
age  of  discretion  has  been  reached. 

§  3163.  Evidence  in  general. — Allegiance  may  be  established  by 
testimony  that  the  accused  was  a  native  born  citizen ;  or  that,  though 
an  alien,  he  was  a  resident  here,  with  his  family  and  effects.  And  it 
is  said  that  if  he  were  abroad,  leaving  his  family  and  effects  here,  his 
allegiance  to  the  government  is  still  due  for  the  protection  they  re- 
ceive.*^  Such  collateral  facts  are  held  sufficiently  established  if 
proved  by  one  witness  only,  since  the  law  requiring  two  witnesses  is 
limited  in  its  terms  to  the  specific  overt  act  charged.*^  It  has  been 
held,  however,  that  proof  of  procurement  of  a  warlike  assemblage,  if 
admissible  to  establish  a  charge  of  actual  presence  under  an  indict- 
ment for  treason  in  levying  war  against  the  United  States,  must  be 
made  in  the  same  manner  and  by  the  same  kind  of  testimony  which 

St.   Tr.   458,  482;    62  L.   R.  A.   325,         "Reg.  v.  Oxford,  9  Car.  &  P.  525, 

note.  38  E.  C.  L.  309. 

=» Respublica  v.  Malin,  1  Ball.   (U.         -'Den  v.  Banta,  1  N.  J.  L.  308. 
g  )  33  -'Lisbon  v.  Lyman,  49  N.  H.  553; 

-» Respublica  v.  Malin,  1  Ball.   (U.  see  also,  Foster  Crown  L.  183;  Car- 

Sj  33  lisle  V.  United  States,  16  Wall.    (U. 

«  United     States     v.     Mitchell,     2  S.)  147;  1  East  P.  C.  52,  53;  3  Green- 

Dall.  (U.  S.)  348.  leaf  Ev.,  §  239. 

« United   States  v.   Fries,   3   Ball.         -^  State   v.    White,   19    Kans.   445; 

(U.  S.)  515.  9  Fed.  Cas.  No.  5126.  Selden  v.  State,  74  Wis.  277,  42  N. 

"  Dammaree's  Trial,  15  How.  St.  W.  218. 
Tr.  521,  609. 


485  MISPRISION  OF  TREASON.  [§   SlG-i. 

would  be  required  to  prove  actual  presence.**  If  an  overt  act  has  been 
proved,  where  the  indictment  is  laid,  the  defendant's  confession  may 
be  given  in  evidence  to  corroborate  that  proof.***  Among  the  acts  of 
adhering  to  or  aiding  and  comforting  public  enemies  may  be  men- 
tioned the  following:  Holding  a  fortress  against  the  state,  in  order 
to  assist  the  enemy;  joining  the  enemy;  surrendering  a  fortress  to  the 
enemy;  liberating  prisoners  taken  from  him,  and  furnishing  him 
with  provisions,  intelligence,  or  munitions  of  war.^° 

§  3164.  Misprision  of  treason. — Misprision  of  treason  against  the 
United  States  is  wlion  any  person  having  knowledge  of  the  commis- 
sion of  any  treason  conceals  it  and  does  not  disclose  it  to  the  proper 
parties.^^  The  proof  of  misprision  of  treason  is  regulated  by  the  rule 
of  the  common  law,  as  in  other  cases  of  crime,  in  all  those  states  where 
it  has  not  been  changed  by  statute.^-  It  must  generally  be  shown  that 
the  accused  had  knowledge  of  the  whole  offense,  that  is  at  least  of  the 
design  or  plot  and  some  of  the  parties. ^^  But  receiving  treasonable 
letters  and  keeping  them  a  long  time  without  disclosure  has  been  held 
admissible  as  tending  to  show  assent  and  participation  in  the  treason,^* 
and  if  one,  knowing  of  the  treason,  afterward  met  with  the  con- 
spirators this,  also,  is  evidence  tending  to  show  treason  on  his  part.'^ 

*' United  States  v.  Burr,  4  Cranch  How.    St.    Tr.    897,    988;    Charge   to 

(U.  S.)  470,  25  Fed.  Cas.  No.  14693.  Grand  Jury,  2  Sprague  (U.  S.)   292, 

"Respublica   v.    Roberts,    1    Dall.  30  Fed.  Cas.  No.  18274. 

(U.  S.)   39;   Respublica  v.  McCarty,  '=3  Greenleaf  Ev.,  §  247. 

2  Dall.   (U.  S.)   86.  "^  Tonge's    Trial,    6    How.    St.    Tr. 
'"United     States     v.     Hodges,     2  226;    Trials    of    Twenty-nine    Regi- 

Wheeler    Cr.    Cas.    (N.    Y.)    477;    1  cides,  5  How.  St.  Tr.  947,  985. 

Hale  P.  C.  146.  "  Francia's  Trial,  15  How.  St.  Tr. 

"Crimes  Act,  April  30,  1790,  §  2;  897,  988,  991. 

3  Greenleaf    Ev.,     §     238;     Foster  '' Trials  of  Twenty-nine  Regicides, 
Crown   L.   183;    Francia's   Trial,    15  5  How.  St.  Tr.  947,  985. 


CHAPTER    CLV. 


MISCELLAXEOUS  OFFENSES. 


Sec. 

3165.  Adulteration  of  food  or  drink. 

3166.  Carrying    concealed    weapons. 

3167.  Cruelty  to  animals. 

3168.  Incest. 

3169.  Libel. 

3170.  Liquor  law  violations. 


Sec. 

3171.  Liquor  law  violations — Intent 

— K  n  o  w  1  e  d  g  e — Presump- 
tions. 

3172.  Malicious  mischief — Malicious 

trespass. 
3172a.  Sodomy. 

3173.  Statutory    crimes    generally — 

Caution. 


§  3165.  Adulteration  of  food  or  drink.— The  selling  of  unwhole- 
some food  and  provisions,  or  the  mixture  of  poisonous  ingredients  in 
food  or  drink  for  individual  use  and  consumption  was  an  indictable 
offense  at  common  law,  even  though  done  through  a  mere  desire  of 
gain,  and  not  from  malice.^  Statutes  in  many  states  exist  upon  the 
subject  of  the  adulteration  of  food  and  drink,  and  they  have,  in  nearly 
every  instance,  been  held  constitutional  as  a  legitimate  exercise  of  the 
police  power  of  the  state,  and  as  not  impairing  rights  of  life,  liberty 
or  property.^  As  a  general  rule  it  is  not  necessary  to  prove  that  de- 
fendants had  knowledge  that  the  article  in  question  was  adulterated,^ 
unless  the  statute  so  requires.    But  this  question  is  often  determined 


1  State  V.  Buckman,  8  N.  H.  203, 
29  Am.  Dec.  646;  Roscoe  Cr.  Ev. 
379;  Goodrich  v.  People,  19  N.  Y. 
574,'  577;  3  Park.  Cr.  Cas.  (N.  Y.) 
622,  627;  2  Russell  Crimes  286;  Un- 
derhill  Cr.  Ev.,  §  480. 

=  State  V.  Snow,  81  Iowa  642,  47 
N.  W.  777,  11  L.  R.  A.  355;  State 
V.  Williams.  (Minn.)  100  N.  W.  641; 
State  V.  Sherod,  83  Minn.  417,  83 
N.  W.  417;  State  v.  Aslesen,  50 
Minn.  5,  52  N.  W.  220;  36  Am.  St. 
620;  State  v.  Campbell,  64  N.  H. 
402,  13  Atl.  585,  10  Am.  St.  419; 
Shivers  v.  Newton,  45  N.  J.  L.  469; 


People  V.  West,  106  N.  Y.  293,  12  N. 
E.  610,  60  Am.  R.  452;  People  v. 
Cipperly,  101  N.  Y.  634,  4  N.  E.  107. 
3  Commonwealth  v.  Warren,  160 
Mass.  533,  36  N.  E.  308;  Common- 
wealth V.  Evans,  132  Mass.  11; 
Commonwealth  v.  Smith,  103  Mass. 
444;  Commonwealth  v.  Waite,  11 
Allen  (Mass.)  264,  87  Am.  Dec.  711; 
Commonwealth  v.  Nichols,  10  Allen 
(Macs.)  199;  Commonwealth  v.  Far- 
ren,  9  Allen  (Mass.)  489;  People  v. 
Kibler,  106  N.  Y.  321,  12  N.  E.  795; 
People  V.  West,  106  N.  Y.  293,  12_  N. 
E.  610,  60  Am.  R.  562. 


486 


487  ADULTERATION   OF   FOOD  OR   DRINK.  [§    31G.J. 

])y  the  wording  of  the  statute,  or  the  particular  section  thereof,  under 
which  a  conviction  is  sought,*  and  if  the  statute  makes  such  knowledge 
an  essential  element  of  the  offense  it  must  he  proved.  Under  most 
statutes,  however,  it  is  not  an  essential  element.  Thus,  on  a  criminal 
charge  of  selling  adulterated  wines,  under  the  Ohio  statute,  it  is  not 
necessary  to  a  conviction  that  knowledge  of  the  adulteration  be  proved 
beyond  a  reasonable  doubt. ^  Where  the  statute  does  not  make  the 
purpose  of  the  sale  of  adulterated  foods  and  drinks,  or  the  knowledge 
of  their  adulteration  a  part  of  the  crime,  neither  the  purpose  nor  the 
knowledge  need  be  proved  by  the  state,  nor  is  either  a  defense  to  a 
charge  of  selling  adulterated  foods  and  wines.*'  In  this  class  of  cases, 
it  is  said,  the  act  of  the  servant  is  the  act  of  the  master,  and  the  latter 
is  generally  held  liable  where  the  statute  is  violated  and  the  servant 
has  acted  within  the  scope  of  his  duty.'^  The  defendant's  intention  to 
sell  may  be  gathered  from  his  acts  and  from  the  time,  place  and  cir- 
cumstances of  their  commission,  and  evidence  as  to  these  circumstances 
is  usually  competent  and  admissible  either  upon  the  question  of  in- 
tent or  upon  the  question  of  his  possession  with  intent  to  sell.^  Stat- 
utes sometimes  designate  the  method  of  seizure  for  analysis,  and  the 
making  and  using  of  such  analysis  in  evidence.  The  provisions  of  the 
statute  must  be  strictly  complied  with  in  order  that  the  analysis  may 
be  admissible  in  evidence  ;**  and  where  the  adulterated  substance  is 
seized  for  analysis  under  circumstances  not  contemplated  in  the  stat- 
ute, the  competency  of  the  evidence  as  to  its  quality  is  to  be  deter- 
mined, it  is  said,  by  rules  of  common  law,  and  other  evidence  may 
usually  be  received.^"     The  defendant  may  give  evidence  tending  to 

*  Commonwealth  v.  Flannelly.  15  Mass.  533,  36  N.  E.  308;  Common- 
Gray  (Mass.)  195;  People  v.  West,  wealth  v.  Vieth,  155  Mass.  442,  29 
106  N.  Y.  293,  12  N.  E.  610,  60  Am.  N.  E.  577;  Commonwealth  v.  Haynes, 
R.  452;  People  v.  Schaeffer,  41  Hun  107  Mass.  194;  see  also,  Meyer  v. 
(N.  Y.)  23;  People  v.  Mahaney,  41  State,  54  Ohio  St.  242,  43  N.  E.  164; 
Hun  (N.  Y.)  26;  Sanchez  v.  State,  Commonwealth  v.  Smith,  143  Mass. 
27  Tex.  App.  14,  10  S.  W.  756;  Can-  169,  9  N.  E.  631. 
tee  v.  State,  (Tex.  App.)  10  S.  W.  'Commonwealth  v.  Rowell,  146 
757.  Mass.   128,  15  N.  E.  154;    Common- 

=  State  V.  Kelly,   54  Ohio  St.   166,  wealth  v.  Smith,  143  Mass.  169,  9  N. 

43  N.  E.  163;  Meyer  v.  State,  54  Ohio  E.  631;  but  see,  Polinsky  v.  People, 

St.    242,   43    N.    E.    163;    Bisman   v.  73  N.  Y.  65. 

State,  54  Ohio  St.  242,  43  N.  B.  164.  ^Commonwealth  v.  Lockhardt,  144 

"State  v.  Kelly,  54  Ohio  St.  166,  Mass.  132,  10  N.  E.  511. 

178,  43  N.  E.  163.  "Commonwealth      v.     Holt,      146 

'Commonwealth    v.    Warren,    160  Mass.   38,   14   N.   E,   930;    Common- 


§  3166.] 


MISCELLANEOUS   OFFENSES. 


488 


impeach  the  correctness  of  tlie  analysis/^  or  to  otherwise  show  that  he 
is  not  guilty. 

§  3166.  Carrying  concealed  weapons. — Statutes  in  many  states 
make  it  a  criminal  offense  to  carry  concealed  weapons.  It  is  held  in 
a  recent  ease  that  a  person  may  commit  but  one  such  offense,  though 
he  carries  the  weapon  from  place  to  place  in  the  presence  of  different 
people  at  the  different  places,  hut  that  whenever  the  continuity  of  the 
act  is  broken  that  particular  offense  is  at  an  end,  and  another  like  of- 
fense is  committed  when  the  weapon  is  again  concealed  upon  his  per- 
son.^2  The  state  must  prove  the  concealment/^  as  well  as  the  mere 
fact  that  a  weapon  was  carried  by  the  defendant,  or,  in  other  words, 
it  must  be  shown  that  the  defendant  carried  the  weapon  concealed ; 
but  circumstantial,  as  well  as  direct  evidence  is  admissible,^*  and  it 
is  not  necessary  for  the  state,  under  most  statutes,  to  affirmatively 
prove  that  the  weapon  was  loaded,^^  nor  the  motive  or  intent  of  th(^ 


wealth  v.  Coleman,  157  Mass.  460, 
32  N.  E.  662.  Testimony  of  a  wit- 
ness other  than  the  official  inspector 
is  admissible  to  show  adulteration. 
Commonwealth  v.  Spear,  143  Mass. 
272,  9  N.  E.  632.  It  has  been  held 
that  a  mere  rule  of  evidence  is  not 
established  by  statutes  providing 
that  milk  shown  by  analysis  to  con- 
tain less  than  a  certain  per  cent,  of 
milk  solids,  etc.,  shall  be  deemed 
adulterated,  and  that  such  a  statute 
is  not  unconstitutional.  Shivers  v. 
Newton,  45  N.  J.  L.  469;  People  v. 
Cipperly,  101  N.  Y.  634,  4  N.  E.  107, 
rev'g  37  Hun  (N.  Y.)  319,  on  grounds 
of  dissenting  opinion  of  Learned, 
J.,  in  court  below;  State  v.  Smyth, 
14  R.  I.  100,  51  Am.  R.  344.  Evi- 
dence that  defendant's  cows  were 
properly  fed,  not  being  offered  for 
the  purpose  of  discrediting  the  an- 
alysis of  the  milk  put  in  on  behalf 
of  the  prosecution,  was  held  to  have 
been  properly  excluded  where  de- 
fendant was  indicted  under  the  New 
Hampshire  statute.  State  v.  Camp- 
bell, 64  N.  H.  402,  13  Atl.  585,  10  Am. 
St.  419. 


"State  V.  Groves,  15  R.  I.  208,  2 
Atl.  384;  People  v.  Hodnett,  68  Hun 
(N.  Y.)  341,  22  N.  Y.  S.  809;  Shivers 
V.  Newton,  45  N.  J.  L.  469. 

"Morgan  v.  State,  119  Ga.  964,  47 
S.  E.  567;  compare.  Smith  v.  State. 
79  Ala.  257;  Ladd  v.  State,  92  Ala. 
58,  9  So.  401. 

"Ridenour  v.  State,  65  Ind.  411; 
Smith  V.  State,  69  Ind.  140;  State 
V.  Johnson,  16  S.  Car.  187.  As  to 
what  is  concealment  or  sufficient 
evidence  thereof,  see,  Scott  v.  State, 
94  Ala.  80,  10  So.  505;  Smith  v. 
State,  96  Ala.  66,  11  So.  71;  State 
V.  Bias,  37  La.  Ann.  259;  State  v. 
Livesay,  30  Mo.  App.  633;  Williams 
V.  Commonwealth,  18  Ky.  L.  R.  663, 
37  S.  W.  680;  State  v.  McManus,  89 
N.  Car.  55;  Barton  v.  State,  7  Baxt. 
(Tenn.)  105;  Woodward  v.  State, 
5  Tex.  App.  296.  For  the  jury: 
State  V.  Lilly,  116  N.  Car.  1049,  21 
S.  E.  563.  Opinion  of  witness  held 
inadmissible,  in,  Nichols  v.  State, 
100  Ala.  23,  14  So.  539. 

"Burst  V.   State,  89   Ind.   133. 

^=  State  V.  Duzan,  6  Blackf.  (Ind.> 
31;    Ridenour  v.  State,  65  Ind.  411. 


489 


CARRYING    CONCEALED    WEAPONS. 


[§    3166. 


defendant  in  carrying  it.^*'  It  has  been  held  tliat  the  state  may  sliow 
that  the  accused  carried  the  concealed  "weapon  not  only  on  the  date 
charged,  hut  at  any  time,  within  the  statute  of  limitations,  previous 
to  the  date  of  the  information  or  indictment.^^  Where  an  essential 
element  of  the  crime  is  the  concealment  of  the  weapon,  or,  in  other 
words,  the  carrying  of  it  concealed,  the  defendant  may  show  that  it 
was  not  concealed  on  the  occasion  in  question.^  ^  So,  it  has  been  held 
that  he  may  show  that  it  was  not  carried  as  a  weapon,  but  for  the  pur- 
pose of  having  it  repaired,^®  or  returning  it  to  the  owner,-°  or  the 
like.^^  The  mere  fact  that  threats  had  been  made  against  the  accused 
does  not  constitute  a  defense  to  a  charge  of  unlawfully  carrying  con- 
cealed weapons.^-  But,  while  evidence  that  many  lawless  men  lived 
in  the  community,  and  that  the  defendant  had  been  advised  to  go 
armed  is  not  admissible  as  a  defense,^^  and  while  vague  threats  and 


The  jury  may  infer  that  it  was 
loaded  If  it  was  carried  concealed 
and  as  a  loaded  weapon.  See,  Carr 
V.  State,  34  Ark.  448;  see  also.  State 
V.  Bollis,  73  Miss.  57,  19  So.  99; 
State  v.  Wardlaw,  43  Ark.  73. 

"Walls  V.  State,  7  Blackf.  (Ind.) 
572;  State  v.  Judy,  60  Ind.  138;  see 
also,  Strahan  v.  State,  68  Miss.  347. 
8  So.  844,  State  v.  Martin,  31  La. 
Ann.  849. 

"Schrimsher  v.  State,  (Tex.  Cr. 
App.)   80  S.  W.  1013. 

^' State  V.  Roten,  86  N.  Car.  701; 
Smith  V.  State,  69  Ind.  140;  Pliim- 
mer  v.  State,  135  Ind.  308,  34  N.  B. 
968;  Stockdale  v.  State.  32  Ga.  225. 
But  not  that  it  was  his  habit  to 
carry  it  openly  rather  than  con- 
cealed. Washington  v.  State,  36 
Ga.  242. 

"Pressler  v.  State,  19  Tex.  App. 
52;  Boissean  v.  State,  (Tex.)  15  S. 
W.  118. 

="  State  V.  Brodmax,  91  N.  Car. 
543;  State  v.  Roberts,  39  Mo.  App. 
47. 

^  See,  State  v.  Gilbert,  87  N.  Car. 
527;  State  v.  Harrison,  93  N.  Car. 
605;  State  v.  Murray,  39  Mo.  App. 
127;    Carr    v.    State,    34    Ark.    448; 


Mangum  v.  State,  15  Tex.  App.  362; 
Christian  v.  State,  37  Tex.  475;  but 
see,  Cutsinger  v.  Commonwealth,  7 
Bush  (Ky.)  392;  Goldsmith  v.  State, 
99  Ga.  253,  25  S.  E.  624;  State  v. 
Woodfin,  87  N.  Car.  526;  Walls  v. 
State.  7  Blackf.   (Ind.)   572. 

"House  v.  State,  139  Ala.  132,  36 
So.  732;  see  also,  Carroll  v.  State, 
28  Ark.  99,  18  Am.  R.  538;  Brown 
V.  State,  72  Ga.  211;  State  v.  Speller, 
86  N.  Car.  697;  Coffee  v.  State,  4 
Lea  (Tenn.)  245;  State  v.  Work- 
man, 35  W.  Va.  367,  14  S.  E.  9,  14 
L.  R.  A.  600.  But  evidence  of 
threats  well  calculated  to  impress 
him  with  reasonable  apprehension  of 
an  attack  upon  his  life  at  the  time 
may  be  admissible  in  some  casea 
and  under  some  statutes.  See,  Bai- 
ley v.  Commonwealth,  11  Bush 
(Ky.)  688;  Sudduth  v.  State,  70 
Miss.  250,  11  So.  680;  Coleman  v. 
State,  28  Tex.  App.  173,  12  S.  W. 
590.  As  to  what  evidence  is  or  is 
not  relevant,  see,  Ross  v.  State,  139 
Ala.  144,  36  So.  718;  Elmore  v.  State, 
140  Ala.  184,  37  So.  156. 

-'  O'Neal  V.  State,  32  Tex.  Cr.  App. 
42,  22  S.  W.  25;  Dillingham  v.  State, 
(Tex.)   32  S.  W.  771;  see  also.  Hop- 


§  3167.] 


MISCELLANEOUS    OFFENSES. 


490 


the  like  usually  constitute  no  defense,-*  yet  the  threats  and  circum- 
stances may  be  of  such  a  character  as  to  be  admissible,  at  least  in  some 
jurisdictions,  as  creating  a  well  founded  apprehension  of  imminent 
danger  to  his  life.-^  The  official  character  of  the  accused,  as  that  of 
an  officer  charged  with  the  duty  of  preserving  the  peace,  and  the  fact 
that  he  was  engaged  in  the  discharge  of  his  duty  may  also  be  shown 
as  a  defense  under  most,  if  not  all,  statutes.^^  Under  some  of  the 
statutes  travelers  are  also  permitted  to  carry  concealed  weapons.  It  is 
generally  held  that  the  state  is  not  required  in  the  first  instance  to 
show  that  the  accused  was  not  a  traveler,  and  that  it  is  for  the  accused 
in  defense  to  show  that  he  was  a  traveler.-'^  This  is  usually  a  question 
for  the  jury  to  determine  from  the  evidence-^  under  proper  instruc- 
tions from  the  court. 

§  3167.  Cruelty  to  animals. — Cruelty  to  animals  is  punishable  as 
a  crime  in  most  of  the  states,  but  it  is  a  statutory  rather  than  a  com- 
mon-law offense,  and  should  not  be  confounded  with  malicious  mis- 


kins  V.  Commonwealth,  3  Bush 
(Ky.)  480;  Commonwealth  v.  Mur- 
phy, 166  Mass.  171,  44  N.  E.  138; 
but  compare,  Hardin  v.  State,  63 
Ala.  38. 

=*  Shorter  v.  State,  63  Ala.  129; 
Strother  v.  State,  74  Miss.  447,  21 
So.  147;  State  v.  Speller,  36  N.  Car. 
697;  Coffee  v.  State,  4  Lea  (Tenn.) 
245. 

^=Dooley  v.  State,  89  Ala.  90,  8 
So.  528;  Coleman  v.  State,  28  Tex. 
App.  173,  12  S.  W.  590;  see  also, 
Bailey  v.  Commonwealth,  11  Bush 
(Ky.)  688;  Sudduth  v.  State,  70 
Miss.  250,  11  So.  680;  State  v.  Work- 
man, 35  W.  Va.  367,  14  S.  E.  9. 

=<=  State  V.  Williams,  72  Miss.  992, 
18  So.  486;  Irvine  v.  State,  18  Tex. 
App.  51;  Lee,  In  re,  46  Fed.  59;  see 
also,  Lott  v.  State,  122  Ind.  393,  24 
N.  E.  156;  Lyle  v.  State.  21  Tex. 
App.  153,  17  S.  W.  425;  Beasley  v. 
State,  5  Lea  (Tenn.)  705;  Miller  v. 
State,  6  Baxt.  (Tenn.)  449;  State  v. 
Wisdom,  84  Mo.  177. 

"Wiley  V.  State,  52  Ind.  516; 
Brownlee  v.  State,   (Tex.)   32  S.  W. 


1043;  see  also.  State  v.  Williams,  70 
Iowa  52,  29  N.  W.  801;  State  v.  Juli- 
an, 25  Mo.  App.  133;  Walker  v. 
State,  35  Ark.  386;  State  v.  Maddox, 
74  Ind.  105;  Territory  v.  Burns,  6 
Mont.  72,  9  Pac.  432;  but  compare, 
People  V.  Pendleton,  79  Mich.  317, 
44  N.  W.  615. 

=«Lawson  v.  State,  (Tex.)  31  S. 
W.  645;  Price  v.  State,  34  Tex.  Cr. 
App.  102,  29  S.  W.  473;  Hathcote  v. 
State,  55  Ark.  181,  17  S.  W.  721; 
Stiewell  v.  State.  (Ark.)  12  S.  W. 
1014;  Lott  V.  State,  122  Ind.  393,  24 
N.  E.  156;  Burst  v.  State,  89  Ind. 
133;  see  also,  as  to  evidence  admis- 
sible upon  the  question,  Wilson  v. 
State,  68  Ala.  41;  Davis  v.  State,  45 
Ark.  359.  But  in  the  recent  case  of 
State  V.  Smith,  157  Ind.  241,  61  N. 
E.  566,  the  two  Indiana  cases  as  to 
what  constitutes  a  traveler  within 
the  exception  to  the  statute  are  dis- 
approved, and  the  court  sustained 
the  appeal  on  the  ground  that  the 
evidence  was  insufficient  to  show 
the  accused  to  be  a  traveler  within 
the  exception  to  the  statute. 


491  CRUELTY   TO   AXIMALS.  [§    3l(;7. 

chief,  the  latter  being  indictable  at  common  law,  while  mere  cruelty 
to  animals,  unless  publicly  inflicted  so  as  to  be  a  public  nuisance,  or 
the  like,  was  not.-^  Some  of  the  statutes  upon  the  subject  go  very  far, 
yet  they  have  generally  been  held  constitutional. ^^  The  term  "ani- 
mal" has  been  given  a  comprehensive  meaning,  and  has  generally  been 
held  to  include  domestic  fowls  and  the  like.^^  The  statutes  are  given 
a  reasonable  construction,  however,  so  as  not  to  interfere  with  the 
proper  use  of  the  animal,  and  it  has  been  said  that  "cruelty  in  the 
statute  means  cruelty  without  reajon."^^  But  the  presumption  that 
one  intends  the  natural  consequences  of  his  act  has  been  applied  in 
such  cases,^^  and  intoxication  has  been  held  no  defense.^*  Under 
most  of  the  statutes  the  ownership  of  the  animal  need  not  be  alleged,^^ 
but  if  it  is  alleged  as  descriptive  of  the  particular  animal  it  must  be 
proved  as  alleged.^"  Malice  or  unlawful  motive  or  mischievous  intent, 
as  already  stated,  is  not  made  an  essential  element  of  the  offense  in 
some  states,  but  if  it  is  it  should  be  proved.^'^  It  may,  however,  be 
inferred  from  circumstances  in  evidence.^^  Parol  evidence  has  been 
held  admissible  to  show  the  listing  of  a  dog  for  taxation,^^  and  evi- 
dence of  the  value  of  the  animal  in  the  neighborhood  or  at  near  and 
accessible  markets  has  been  held  competent'*^  where  the  punishment 
depended  on  value. 

=^  Bishop  Stat.  Crimes,  §  1100.  Mass.  408;   see  also,  Hunt  v.  State, 

=°  Bland  v.  People,  (Colo.)  76  Pac.  3  Ind.  App.  383,  29  N.  E.  933. 

359,  65  L.  R.  A.  424,  and  authorities  ^*  State  v.  Avery,  44  N.  H.  392. 

cited  in  note  and  opinion;   11  L.  R.  ==  State  v.   Brocker,   32   Tex.   611; 

A.  522,  and  note;   33  L.  R.  A.  836;  State  v.  Bruner,  111  Ind.  98,  12  N. 

39  L.  R.  A.  520.  E.   103. 

=' Budge  V.  Parsons,  3  B.  &  S.  382;  =«  State  v.  Bruner,  111  Ind.  98,  12 

Reiche  v.  Smythe,  7  Blatchf.  (U.  S.)  N.  E.   103;    Collier  v.   State,  4  Tex. 

235;  see  also,  State  v.  Avery,  44  N.  App.    12;    Darnell   v.    State,    6    Tex. 

H.  392;  Commonwealth  v.  Whitman,  App.  482. 

118   Macs.   458;    Benson   v.   State,   1  "  Dover  v.  State,  32  Tex.  84;  Hoak 

Tex.   App.    6;    State  v.   Bruner,   111  v.  State,  (Tex.)  26  S.  W.  508. 

Ind.  98,  12  N.  E.  103;  State  v.  Giles,  ■'"  Hobson   v.    State,    44    Ala.    380; 

125  Ind.  124,  25  N.  E.  159.  Hunt  v.   State,   3   Ind.   App.   383,   29 

■•'^  Cornelius  v.  Grant,  7  Scotch  N.  E.  933;  State  v.  Council,  1  Overt. 
Sess.  Cas.  4th  ser.  Just.  13;  see  also,  (Tenn.)  305;  as  to  evidence  held  ad- 
State  V.  Avery,  44  N.  H.  392;  Com-  missible,  see.  Brown  v.  State,  26 
monwealth     v.      Lufkin,      7     Allen  Ohio  St.  176. 

(Mass.)   579;    Hunt  v.  State,  3  Ind.  '"  Hewitt  v.  State,  121  Ind.  245,  23 

App.  383,  29  N.  E.  933.  N.  E.  83. 

^^Commonwealth     v.     Wood,     111  '"  Walker  v.  State,  89  Ala.  74,  S  So. 


§    3168.]  MISCELLANEOUS    OFFENSES.  492 

§  3168.  Incest. — It  seems  that  at  common  law  incest,  as  such,  was 
not  a  erime,*^  although  it  was  punished  by  the  ecclesiastical  courts.*^ 
But  it  is  now  denounced  as  a  crime  by  the  statutes  of  the  various 
states.  It  is  said  by  Mr.  Bishop  that  it  is  either  an  unlawful  mar- 
riage or  a  particular  form  of  fornication  or  adultery.*^  As  these  sub- 
jects are  treated  in  other  chapters,  little,  therefore,  need  be  added  in 
this  connection.  The  distinguishing  feature  of  the  crime  is  that  it  is 
the  intermarriage  or  carnal  copulation  without  marriage  of  a  man  and 
woman  so  related  to  each  other  that  their  marriage  is  prohibited  by 
law.  Voluntary  confessions  of  the  defendant  are  generally  admissible- 
to  show  the  act.**  But  the  courts  generally  refuse  to  sutain  a  con- 
viction entirely  based  on  uncorroborated  confessions  of  the  defend- 
ant.*^ So,  it  is  held  in  most  jurisdictions  that  if  the  woman  is  a  con- 
senting party,  the  accused  cannot  be  convicted  on  her  testimony  un- 
less corroborated,**'  but  it  is  held  otherwise  where  she  is  in  no  sense 
an  accomplice.*^  The  relationship  and  pedigree  of  the  parties,  accord- 
ing to  what  seems  the  better  view,  may  be  shown  by  reputation,*^  but 
the  contrary  view  is  taken  in  a  recent  case.*^  Under  most  of  the  stat- 
utes, as  knowledge  of  the  relationship  is  not  made  an  element  of  the 
offense,  it  need  not  be  averred  and  proved,^"  but  it  has  been  held  other- 
wise in  Indiana."    Evidence  of  previous  acts  of  lascivious  familiarity 

144.     But  the  exclusion  of  evidence  N.  Dak.  563,  80  N.  W.  476;   State  v. 

of  value  has  been  held   immaterial  Jarvis,  20  Ore.  437,  26  Pac.  302,  23 

where  proof  of  value  is  not  required.  Am.    St.   141;    Jackson  v.    State,   37 

Dinwiddie  v.  State,  103  Ind.  101,  2  Tex.  Cr.  App.  612,  40  S.  W.  498;  but 

N.  E.  290.  see.    State  v.   Dana,   59   Vt.    614,   10 

"  People  V.  Burwell,  106  Mich.  27,  Atl.  1027. 

63  N.  W.  986;  State  v.  Slaughter,  70  "Smith   v.   State,   108   Ala.    1,   19 

Mo.   484,   488;    State  v.   Keesler,   78  So.    306,    54   Am.    St.    140;    State   v. 

N.  Car.  469.  Chambers,  87  Iowa  1,  53  N.  W.  1090, 

"Woods   V.    Woods,    2    Curt.    Ecc.  43   Am.   St.   349;    Mullinix  v.   State, 

516;    Blackmore  v.    Brider,   2    Phil.  (Tex.  Cr.  App.)  26  S.  W.  504. 

Ecc.  359.  ^^Ewell  v.  State,  6  Yerg.   (Tenn.) 

^^  Bishop  Stat.  Crimes,  §  731.  364;  State  v.  Bullinger,  54  Mo.  142; 

*^  Yeoman  v.  State,  21  Neb.  171,  31  Bishop  Stat.  Crimes,  §  735. 

N.  W.  669;  Bergen  v.  People,  17  111.  ^'' Elder  v.   State,   123   Ala.   35,   26 

426,  65  Am.  Dec.  672.  So.  213. 

*^  Bergen  v.  People,  17  111.  426,  65  ™  People  v.  Roller,  142  Cal.  621,  76 

Am.    Dec.    672;    Sauls   v.    State,    30  Pac.   500;    Simon  v.    State,   31   Tex. 

Tex.  App.  496,  17  S.  W.  1066.  Cr.  App.  186,  20  S.  W.  716,  37  Am. 

^''Yother  v.  State,  120  Ga.  264,  47  St.  802;   State  v.  Pennington,  41  W. 

S.  E.  555;  State  v.  Streeter,  20  Nev.  Va.  599,  23  S.  E.  918. 

403,  22  Pac.  758;    State  v.  Kellar,  8  "Williams  v.  State,  2  Ind.  439. 


493  IXCEST — LIBEL.  [§    3169. 

or  illicit  intercourse  between  the  parties  is  generally  held  admissible 
as  tending  to  show  an  antecedent  probability  and  disposition  to  com- 
mit the  crime. ^^  It  has  also  been  held  that  subsequent  acts  of  the  same 
kind  is  admissible  when  they  are  continuous,^^  but  this  doctrine  is 
more  questionable  and,  in  some  jurisdictions,  such  evidence  is  not  ad- 
missible, at  least  where  indictments  for  the  later  acts  are  pending;^* 
and  where  the  relationship  and  intercourse  between  the  parties  is 
establislied  it  is  generally  immaterial  that  the  woman  had  sexual  in- 
tercourse with  other  men.^^ 

§  3169.  Libel. — The  general  subject  of  libel  has  been  treated  in 
another  volume  of  this  work,  and  for  that  reason,  although  the  treat- 
ment was  more  particularly  with  reference  to  libel  in  civil  cases,  it  is 
unnecessary  to  again  consider  the  subject  at  length.  Criminal  libel 
has  been  defined  as^''  "A  publication  in  print  or  writing  without  jus- 
tification or  lawful  excuse,  which  is  calculated  to  injure  the  reputation 
of  another,  by  exposing  him  to  hatred,  ridicule  or  contempt."  The 
state  must  prove  the  following  facts :  First,  the  publication  by  the  de- 
fendant; second,  that  the  matter  published  is  libelous;  third,  the  in- 
tent, and  fourth,  wh.en  the  truth  is  admissible  in  defense,  the  falsity 
of  the  assertions  made."=^    The  manner  of  proving  the  publication  and 

^'  State  V.  Markins,  95  Ind.  464,  48  is  usually  Inadmissible  for  the  de- 
Am.  R.  733;  People  v.  Cease,  80  fendant.  Kidwell  v.  State,  63  Ind. 
Mich.  576,  45  N.  W.  585;  People  v.  384;  as  to  character  of  defendant, 
Patterson,  102  Cal.  239,  36  Pac.  436;  see  and  compare,  Poyner  v.  State, 
Burnett  v.  State,  32  Tex.  Cr.  App.  (Tex.  Cr.  App.)  48  S.  W.  516;  Peo- 
86,  22  S.  W.  47.  ple  v.   Benoit,  97  Cal.  249,  31   Pac. 

°'  Mathis     V.     Commonwealth,     11  1128. 

Ky.  L.  R.  882,  13  S.  W.  360;  Burnett  '"  Underhill  Cr.  Ev.,  §  361. 

T.  State,  32  Tex.  Cr.  App.  86,  22  S.  "  People  v.  Croswell,  3  Johns.  Cas. 

W.  47,  overruled  in,  Clifton  v.  State,  (N.  Y.)  337;  Raker  v.  State,  50  Neb. 

(Tex.  Cr.  App.)  79  S.  W.  824.  202.  69  N.  W.  749;  People  v.  Ritchie, 

"Clifton  V.  State,  (Tex.  Cr.  App.)  12  Utah  180,  42  Pac.  209;    see  also, 

79    S.   W.   824;    Lovell   v.    State,    12  Benton  v.  State,  59  N.  J.  L.  551,  36 

lud.  18.     Nor  is  evidence  of  subse-  Atl.    1041.      One    who    circulates    a 

quent    improper    relations    between  libel  may  be  guilty  of  the   offense 

defendant    and    another    ordinarily  denounced  by  the  Michigan  statute 

competent.       Porath     v.     State,     90  (Comp.   Laws,   §  11762),  making  it 

"Wis.  527,  63  N.  W.  1061.  a    misdemeanor    to    falsely    charge 

^=  State  v.   Winningham,    124    Mo.  another  with  the  commission   of  a 

423,  27  S.  W.  1107;  Kidwell  v.  State,  crime.     Mack  v.  Sharp,   (Mich.)  101 

63    Ind.    384;     Mathis    v.    Common-  N.  W.  631. 

wealth.  11  Ky.  L.  R.  882,  13  S.  W.  ^»  Odgers  Libel  and  Slander,  580. 
360.     So,  evidence  of  her  character 


§    3169.]  MISCELLANEOUS   OFFENSES.  494 

connecting  the  defendant  therewith  is  elsewhere  considered."^^  Parol 
evidence  is  generally  admissible,  where  necessary,  to  explain  the 
meaning  of  the  language  used,  and  to  identify  the  persons  and  objects 
or  matters  referred  to.''^  Although  malice  must  be  shown,  this  means 
malice  in  the  legal  rather  than  the  ordinary  sense,  and  it  may  be  in- 
ferred from  circumstances."  The  evidence  is  frequently  permitted 
to  take  a  broad  range  for  the  purpose  of  showing  the  intention  of  the 
accused,*'-  and  he  may,  in  most  Jurisdictions,  testify  as  to  his  own  in- 
tention.''^  It  was  formerly  held  that  the  jury  could  only  determine 
the  fact  of  publication  by  the  defendant  and  the  meaning  of  the  words 
used ;  and  that  it  was  for  the  court,  in  libel  cases,  to  then  determine 
whether  there  was  the  necessary  malicious  intent  in  law.''*  But  the 
argument  of  Erskine  in  the  Dean  of  St.  Asaph's  Case,*'^  and  the  fact 
that  juries,  influenced  by  this  apparently  harsh  rule  taking  the  case 
out  of  their  hands  often  acquitted  guilty  parties,  or  found  that  there 
was  no  publication  by  the  defendant,  or  no  such  meaning  in  the  words 
as  made  them  libelous,  doubtless  influenced  parliament  in  thereafter 
passing  a  law  leaving  the  matter  to  the  jury  as  a  question  of  fact,  or 
a  mixed  question  of  law  and  fact,  as  in  other  cases.  Constitutional  or 
statutory  provisions  to  this  effect  are  now  in  force  in  nearly  every 
jurisdiction.  So,  the  truth  of  the  alleged  libelous  statement  may  now 
be  shown  by  the  defendant  in  a  proper  case,  although  the  old  common 

=»Vol.  Ill,  §  2450;   see  also,  Com-  Brady,  44  Kans.   435,  24  Pac.  948; 

monwealth'v.    Morgan,    107    Mass.  see  also,  Vol.  Ill,  §  2451. 

199-  Rex  V.  Beare,  1  Ld.  Raym.  414,  "-See,  Smith  v.  Commonwealth,  98 

12  Mod.  219;  Boyle  v.  State,  6  Ohio  Ky.    437,    33    S.    W.    419;    Common- 

C.  C.  163;  Giles  v.  State,  6  Ga.  276;  wealth  v.  Harmon,  2  Gray   (Mass.) 

State  V.  Barnes,  32  Me.  530;  State  v.  289;    State  v.  Conable,  81  Iowa  60, 

Mclntire,  115  N.  Car.  769,  20  S.  E.  46  N.  W.  759;    People  v.  Glassman, 

721;  Rex  V.  Girdwood,  1  Leach  C.  C.  12  Utah  237,  32  Pac.  956;  Benton  v. 

169;     State    v.     Jean'dell,     5     Harr.  State,  59  N.  J.  L.  551,  36  Atl.  1041; 

(Del.)  475;  Swindle  v.  State,  2  Yerg.  Manning  v.  State,   (Tex.)    39  S.  W. 

(Tenn.)  581,  24  Am.  Dec.  515.  118;  Duke  v.  State,  19  Tex.  App.  14. 

«>  State  v.  Fitzgerald,  20  Mo.  App.  "^  State  v.   Clyne,   53   Kans.    8,   35 

408;    Dickson  v.   State,  34  Tex.   Cr.  Pac.   789;    People  v.   Stark,  59  Hun 

App.  1.  28  S.  W.  815;  Commonwealth  (N.  Y.)  51,  12  N.  Y.  S.  688. 

V.  Morgan,  107  Mass.  199;    State  v.  '''See,  Rex  v.  Dean  of  St.  Asaph.  3 

Mason,    26    Ore.    273,    38    Pac.    130;  Term  R.  428,  note;  Rex  v.  Woodfall, 

but  see.  People  v.  McDowell,  71  Cal.  5   Burr.    2661;    Article   in   39   Cent. 

194,  11  Pac.  868.  Law  Jour.  360. 

"•  Even,  it  seems,  from  the  wilful  "=  See,  Erskine's  speech,  Goodrick 

doing  of  an  unlawful  act,  such  as  British     Eloquence;      also     see,     3 

publishing  a  libel,  naturally  calcu-  Campbell    Lives    of    Chief    Justices 

lated   to   injure   another.     State   v.  432,  et  seq.;  39  Cent.  Law  Jour.  360. 


495 


LIBEL. 


[§    3109. 


law  rule  did  not  permit  it.^*'  Upon  the  subject  of  evidence  of  the 
truth  of  the  statement  as  a  defense,  it  has  been  said:^^  "But  usually 
the  truth  alone  is  not  a  sufficient  excuse  if  the  libel  was  published  in 
bad  faith  and  with  an  intent  to  injure.^*  Where  the  truth  is  a  suffi- 
cient justification,  the  accused  is  not  compelled  to  prove  it  beyond  a 
reasonable  doubt.*"'  It  is  enough  if  upon  all  the  evidence  the  jury  be- 
lieve his  statements  are  true.  And  where  the  evidence  for  the  defend- 
ant creates  a  prima  facie  presumption  in  the  minds  of  jurors  that  his 
statements  are  true,  it  is  incumbent  upon  the  prosecution  to  convince 
them  of  their  falsity  beyond  all  reasonable  doubt. ^•^  It  is  only  neces- 
sary to  prove  the  truth  of  that  part  of  the  publication  which  is  alleged 
to  be  libelous.''^  It  is  not  allowable  to  prove  that  the  matters  referred 
to  in  the  alleged  libel  were  rumored  about  the  neighborhood,  and  were 
accepted  as  the  truth  by  persons  who  knew  the  party  libeled."'-  The 
question  has  arisen  in  a  number  of  cases  as  to  the  venue  and  jurisdic- 
tion over  prosecutions  for  libel.  In  a  recent  case  it  is  held  that  where 
the  editor  of  a  newspaper  writes,  prints  and  mails  a  libelous  news- 
paper article  in  one  county  to  be  published  in  another,  the  offense  is 
consummated  in  the  latter  county."*     Indeed,  it  is  generally  held 


°*See,  Odger  Libel  &  SI.  388-390; 
Underbill  Cr.  Ev.,  §  365;  Harris  Cr. 
Law  (Force's  ed.)  97,  note. 

"  Underbill  Cr.  Ev.,  §  365. 

•^  Barthelemy  v.  People,  2  Hill 
(N.  Y.)  248;  State  v.  Bush,  122  Ind. 
42,  23  N.  E.  677;  State  v.  Lebre,  2 
Brev.  (S.  Car.)  446;  State  v.  Lyon, 
89  N.  Car.  568;  but  see,  Gillett  Cr. 
Law,  §  561;  see  generally,  State  v, 
Haskins,  109  Iowa  656,  80  N.  W. 
1063;  Commonwealtb  v.  Bonner,  9 
Mete.  (Mass.)  410;  State  v.  Verry, 
36  Kans.  416,  13  Pac.  838. 

•^Manning  v.  State,  (Tex.)  39  S. 
W.  118;  State  v.  Busb,  122  Ind.  42, 
23  N.  E.  677;  see  also,  Drake  v. 
State,  53  N.  J.  L.  23,  20  Atl.  747. 

'"State  v.  Busb,  122  Ind.  42,  23 
N.  E.  677;  McArtbur  v.  State,  59 
Ark.  431,  27  S.  W.  628;  State  v. 
Wait,  44  Kans.  310,  24  Pac.  354; 
Commonwealtb  v.  Rudy,  5  Pa.  Dist. 
Ct.  270;  Smitb  v.  Commonwealth,  98 
Ky.  437,  33  S.  W.  419. 


"  State  V.  Wait,  44  Kans.  310,  24 
Pac.  354. 

■=  Commonwealth  v.  Place,  153  Pa. 
St.  314,  26  Atl.  620;  People  v.  Jack- 
man,  96  Mich.  269,  55  N.  W.  809; 
State  V.  Hinson,  103  N.  Car.  374,  9 
S.  E.  552;  contra,  Humbard  v.  State, 
21  Tex.  App.  200,  17  S.  W.  126.  In 
Commonwealth  v.  Snelling,  32  Mass. 
337,  342,  the  court,  by  Shaw,  C.  J., 
said:  "But  how  is  this  defense  to 
be  made?  By  proof  of  the  truth  of 
the  matter;  not  his  belief  of  the 
truth;  not  bis  information,  nor  the 
strength  of  the  authority  on  which 
such  belief  was  taken."  The  ac- 
cused will  not  be  permitted  to  prove 
the  general  bad  character  of  the 
party  libeled.  People  v.  Stokes,  24 
N.  Y.  S.  727,  30  Abb.  N.  Cas.  200; 
contra,  by  statute  in  Texas,  Man- 
ning V.  State,   (Tex.)   39  S.  W.  118. 

"*  State  V.  Huston,  (S.  Dak.)  104 
N.  W.  451.  See  also,  Haskell  v. 
Bailey,  25  U.  S.  App.  99,  11  C.  C.  A. 


1170.] 


MISCELLANEOUS    OFFENSES. 


496 


that  although  the  crime  is  committed  where  publicaton  is  made,  yet 
if  the  publication  is  in  a  newspaper  circulated  in  different  counties  it 
may  be  deemed  to  be  made  in  each  county  into  which  the  newspaper 
is  sent  and  circulated,  even  though  the  paper  is  printed  in  another 
state.'^^**  By  the  common  law,  it  is  said,  the  sale  of  each  copy  is  a 
distinct  offense,  and  the  prosecutor  may  at  least  elect  for  which  of 
the  distinct  offenses  he  will  prosecute.^^ 

§  3170.  Liquor  law  violations. — Selling  intoxicating  liquor  was 
not  a  crime  under  the  old  common  law,  but  there  are  now  statutes  in 
nearly  every  jurisdiction  not  only  prohibiting  the  sale  of  intoxicating 
liquors  without  a  license,  and  making  it  a  criminal  offense  to  do  so, 
but  also  making  it  an  offense  to  sell  to  minors,  drunkards,  or  the  like, 
or  to  sell  at  certain  places  or  on  certain  days  or  during  certain  hours, 
and  even  the  keeping  of  such  liquors  with  intent  to  unlawfully  sell 
them  is  punishable  in  many  states.  Statutes  upon  these  subjects,  when 
properly  drawn,  have  generally  been  upheld  as  constitutional.'^^*  The 
question  as  to  how  far  judicial  knowledge  will  be  taken  of  the  intoxi- 
cating qualities  of  certain  liquors  has  already  been  fully  considered.''* 


476,  63  Fed.  249.  In  some  states  the 
matter  is  determined  or  regulated 
largely  by  statute,  but,  in  most 
states,  the  statutory  law  is  the  same 
as  the  common  law. 

''-**  Commonwealth  v.  Blanding,  3 
Pick.  (Mass.)  304,  15  Am.  Dec.  214; 
McClain  Crim.  L.,  §  1058.  See  also, 
Baker  v.  State,  (Ga.)  25  S.  E.  341; 
Commonwealth  v.  Macloon,  101 
Mass.  1,  100  Am.  Dec.  89;  Mills  v. 
State,  18  Neb.  575,  26  N.  W.  354; 
Rex  V.  Burdett,  4  B.  &  Aid.  95,  6 
E.  C.  L.  404. 

"Belo  V.  Wren,  63  Tex.  721.  We 
quote  from  the  opinion  in  this  case 
as  follows:  "The  fact  that  the 
crime  of  libel  may  have  been  com- 
pleted by  a  publication  of  the  paper 
in  Galveston  county  does  not  make 
it  any  less  of  a  crime  to  circulate 
the  number  containing  the  alleged 
libelous  article  in  other  places.  By 
the  common  law  the  sale  of  each 
copy  is  a  distinct  offense,  and  the 
prosecutor  may  at  least  choose  for 


which  of  the  distinct  offenses  he 
will  call  the  guilty  party  to  account. 
A  copy  of  the  paper  may  first  be 
sold  to  A.,  then  one  to  B.,  and  an- 
other to  C,  but,  because  the  publi- 
cation is  completed  by  selling  to  A., 
the  government  is  not  bound  to  se- 
lect that  particular  fact  as  the  one 
upon  which  it  will  rely  to  prove 
the  completion  of  the  offense.  It 
may  indict  for  either  of  the  sales, 
and  it  makes  no  difference  which 
was  first  in  point  of  time.  So,  for 
the  same  reason,  it  is  unimportant 
in  what  place  the  publication  first 
took  place." 

"*See,  78  Am.  St.  253-255.  note; 
Bishop  Stat.  Crimes,  §  989-992, 
1056;  Cooley  Const.  Lim.  (6th  ed.) 
716-720;  see  also,  State  v.  Dollison, 
194  U.  S.  445,  24  Sup.  Ct.  703,  aff'g 
68  Ohio  St.  688;  Webster  v.  State, 
110  Tenn.  491,  82  S.  W.  180;  People 
V.  Shuler.  (Mich.)  98  N.  W.  986. 

''  See,  Vol.  I,  §  70. 


497 


LIQUOR  LAW  VIOLATIONS. 


[§    3170. 


The  statute  under  which  the  particular  case  is  brought  largely  deter- 
mines what  must  be  proved.  As  a  general  rule  every  fact  constituting 
*'an  indispensable  element  in  the  offense  must  be  proved,  but  no  more 
need  be.""  Thus,  it  has  been  held  that  a  prosecution  for  being  a 
common  seller  continuously  between  specified  dates  may  be  sustained, 
although  it  appears  that,  during  a  part  of  the  time,  the  defendant  had 
a  license.'^*  A  single  sale  without  a  license  is  sufficient  to  constitute 
the  offense  of  selling  without  a  license,"  and  it  is  therefore  held  that 
it  is  unnecessary  to  show  sales  witliout  a  license  during  the  entire 
period  alleged.'^  So,  although  the  allegation  is  precise  as  to  the  quan- 
tity sold,  it  is  not  always  essential  that  the  exact  quantity  should  be 
proved.'^'*  It  is  generally  sufficient  if  the  sale  of  such  a  quantity  is 
shown  as  calls  for  the  same  punishment  as  that  alleged.^"  But  proof 
of  a  transaction  which  comes  short  of  a  sale  will  not  sustain  a  charge 
of  selling,  and  it  was  so  held  where,  although  the  liquor  called  for 
was  supplied  by  the  defendant,  he  refused  to  accept  pay  therefor." 
So,  where  the  name  of  the  purchaser  is  required  to  be  averred  and 
proved  a  variance  therein  will  generally  be  fatal.*^  Circumstantial 
evidence,  as  well  as  direct  evidence,  is  admissible  in  such  cases. ^^ 


"Bishop  Stat.  Crimes,  §  1046; 
Murphy  v.  State,  28  Miss.  637;  Long 
V.  State,  56  Ind.  117,  206;  Garst  v. 
State,  68  Ind.  37;  Massie  v.  Com- 
monwealth, 30  Gratt.  (Va.)  841. 

'^Commonwealth  v.  Putnam,  4 
Gray   (Mass.)   16. 

"'McPherson  v.  State,  54  Ala.  221; 
Dansey  v.  State,  23  Fla.  316,  2  So. 
692;  People  v.  Kropp,  52  Mich.  582, 
18  N.  W.  368;  State  v.  Small,  31  Mo. 
197;  Lewis  v.  Commonwealth,  90 
Va.  843,  20  S.  E.  777. 

"  State  v.  Hynes,  66  Me.  114.  So 
a  sale  either  before  a  license  is  ob- 
tained or  after  it  has  expired  is  gen- 
erally unlawful.  Kaiser  v.  State, 
78  Ind.  430;  Edwards  v.  State,  22 
Ark.  253;  Commonwealth  v.  Put- 
nam, 4  Gray  (Mass.)  16;  Common- 
wealth V.  Hamer,  128  Mass.  76;  Neu- 
man  v.  State,  76  Wis.  112,  45  N.  W. 
30. 

"» Bishop     Stat.     Crimes.     §  1039; 
Bishop  Cr.  Proc.  I,  §§  488b,  488c. 
Vol.  4  Elliott  Ev.— 32 


**"  State  v.  Connell,  38  N.  H.  81; 
State  V.  Moore,  14  N.  H.  451;  Brock 
V.  Commonwealth,  6  Leigh  (Va.) 
634;  Schlict  v.  State,  31  Ind.  246; 
State  V.  Andrews,  28  Mo.  17. 

"  Commonwealth  v.  Packard,  5 
Gray  (Mass.)  101;  Seibert  v.  State, 
40  Ala.  60;  see  also.  Maxwell  v. 
State,  140  Ala.  131,  37  So.  266;  but 
compare,  Ashley  v.  State,  (Tex.  Cr. 
App.)  80  S.  W.  1015. 

*^- Brown  v.  State,  48  Ind.  38;  State 
V.  Wolff,  46  Mo.  584;  Commonwealth 
V.  Mehan,  11  Gray  (Mass.)  321; 
Commonwealth  v.  Brown,  2  Gray 
(Mass.)  358;  Commonwealth  v. 
Shearman,  11  Cush.  (Mass.)  546; 
Dyer  v.  People,  84  111.  624. 

^^  State  V.  Hynes,  66  Me.  114,  115; 
Rater  v.  State,  49  Ind.  507;  State  v. 
Cunningham,  25  Conn.  195;  State  v. 
Wilson,  5  R.  I.  291;  Stone  v.  State. 
30  Ind.  115;  Needham  v.  State,  19 
Tex.  332. 


§  3170.] 


MISCELLANEOUS    OFFENSES. 


498 


I 


Upon  this  subject  the  following  propositions  have  been  stated  by  Mr. 
Bishop  :^*  "Thus,  as  steps  in  the  path  to  the  conclusion  of  guilt,  such 
facts  may  be  shown  as  the  presence  ,of  liquor  in  the  defendant's  place 
of  business,  the  hustling  out  of  bottles  of  it  on  the  entrance  of  the 
officers  of  the  law,  tumblers  on  the  bar,  strong  beer  in  the  beer-pump  f^ 
declarations  of  the  defendant  that  he  had  kept  and  would  keep  liquor 
for  sale,  though  not  pointing  specially  to  the  transaction  in  contro- 
versy;^® his  assertion  that  he  had  deemed  the  law  unconstitutional, 
and  he  meant  to  violate  it  f  the  liquor  on  tap,  and  the  implements 
around  for  measuring  and  drinking  itf^  a  bar,  and  bottles  in  itf^ 
a  coming  and  going  with  bottles,^"  especially  when  they  are  empty  at 
the  entering  and  full  of  liquor  at  the  exit.'*^  The  one  competent  fact 
may  not  be  alone  sufficient;  and,  unless  all  combined  satisfy  the  jury 
beyond  a  reasonable  doubt,  of  the  defendant's  guilt,  the  case  fails.''^ 
It  is  not  even  permissible  to  show  a  mere  common  report,  or  public 
notoriety,  that  the  defendant  has  sold  liquors. ''^^     The  statutes,  in 


»*  Bishop  Stat.  Crimes,  §  1048. 

*=  Commonwealth  v.  Cotter,  97 
Mass.  336;  Commonwealth  v.  Van 
Stone,  97  Mass,  548;  Vallance  v.  Ev- 
erts, 3  Barb.  (N.  Y.)  553. 

«^New  Gloucester  v.  Bridgham, 
28  Me.  60;  State  v.  Bonney,  39  N.  H. 
206. 

"Commonwealth  v.  Kimball,  24 
Pick.   (Mass.)  366. 

»« Commonwealth  v.  Levy,  126 
Mass.  240. 

^^  People  V.  Hulbut,  4  Denio  (N. 
Y.)  133;  State  v.  Knott,  5  R.  I.  293. 

«°  Commonwealth  v.  Intoxicating 
Liquors,  105  Mass.  595;  see  also. 
Commonwealth  v.  Brothers,  158 
Mass.  200,  33  N.  E.  386;  Common- 
wealth V.  Finnerty,  148  Mass.  165, 
19  N.  E.  215;  Pike  v.  State,  40  Tex. 
Cr.  App.  613,  51  S.  W.  395. 

"State  v.  Long,  7  Jones  L.  (N. 
Car.)  24,  27;  Huey  v.  State,  31  Ala. 
349;  Pannell  v.  State,  29  Ga.  681. 

°=  Bishop  Cr.  Proc.  I,  §§  1073- 
1079;  New  York  v.  Walker,  4  E.  D. 
Smith  (N.  Y.)  258;  United  States  v. 
Furlong,  2  Biss.  (U.  S.)  97. 


°^  Cobleigh  v.  McBrlde,  45  Iowa 
116.  As  to  what  is  sufficient  ta 
make  the  principal  criminally  liable 
where  the  sale  is  made  by  a  clerk 
or  bar-tender,  see,  1  Bishop  Cr.. 
Proc,  §§  488d,  1096-1101;  State  v. 
Tibbetts,  35  Me.  81;  Hall  v.  Mc- 
Kechnie,  22  Barb.  (N.  Y.)  244; 
State  V.  Williams,  3  Hill  (S.  Car.) 
91;  Seibert  v.  State,  40  Ala.  60,  63; 
Sellers  v.  State,  98  Ala.  72,  13  So. 
530;  Anderson  v.  State,  39  Ind.  553; 
Molihan  v.  State,  30  Ind.  266;  State 
V.  Mahoney,  23  Minn.  181;  Thomp- 
son v.  State,  45  Ind.  495;  Anderson 
V.  State,  22  Ohio  St.  305;  Common- 
wealth V.  Major,  6  Dana  (Ky.)  293; 
Scott  V.  State,  25  Tex.  168;  State  v. 
Bonney,  39  N.  H.  206;  State  v.  Fos- 
ter, 3  Fost.  (N.  H.)  348;  Patterson 
V.  State,  21  Ala.  571;  Riley  v.  State, 
43  Miss.  397;  Commonwealth  v.  Kim- 
ball, 24  Pick.  (Mass.)  366;  Common- 
wealth V.  Galligan,  156  Mass.  270,  30 
N.  E.  1142;  Commonwealth  v. 
Rooks,  150  Mass.  59,  22  N.  E.  436; 
Commonwealth  v.  Putnam,  4  Gray" 
(Mass.)  16;  Commonwealth  v.  Nich- 


499  LIQUOR   LAW   VIOLATIONS.  [§    wKl. 

some  of  the  states,  make  the  delivery  of  the  liquor  under  specified 
circumstances,  prima  facie  evidence  of  a  sale,  and  such  statutes  have 
been  held  constitutional.^*  So,  a  statute  providing  that  a  licensee 
who  transgresses  certain  restrictions  shall  be  deemed  guilty  of  selling 
without  a  license  has  been  held  to  be  constitutional  and  valid.®^  There 
is  some  conflict  among  the  authorities  as  to  whether  the  state  is  bound 
to  prove  in  the  first  instance  that  the  defendant  was  not  licensed  or 
otherwise  authorized  to  sell  the  liquor.  Mr.  Bishop  gives  his  own  rea- 
sons for  taking  the  view  that  the  state  is  not  bound  to  show  this  by 
affirmative  evidence,  and  refers  to  the  authorities  on  both  sides  by 
states.^"  It  is  now  settled,  however,  in  most  jurisdictions,  either  by 
statute  or  judicial  decision  in  the  absence  of  any  express  statutory 
provision  upon  the  subject,  that  the  burden  is  upon  the  defendant  to 
show  his  license  or  authority  as  a  defense,**^  and  the  impossibility  of 
obtaining  a  license  or  the  wrongful  refusal  of  his  application  therefor 
is  no  defense.®^ 

§  3171.  Liquor  law  violations — Intent — Knowledge — Presump- 
tions.— The  defendant's  intent  to  unlawfully  sell  the  liquor  is  an  es- 
sential element  of  the  offense  of  keeping  liquor  for  unlawful  sale  and 

ols,  10  Mete.    (Mass.)    259;    Parker  ^« Bishop     Stat.     Crimes,     §§1051, 

V.   State,  4   Ohio   St.   563;    State  v.  1052,  and  note. 

Hayes,  67   Iowa  27,  24  N.  W.  575;  "In  addition  to  authorities  cited 

State  V.  Baker,  71  Mo.  475;  State  v.  by  Bishop,   see,   Orme  v.   Common- 

Kittele,   110   N.    Car.   560,   15    S.   E.  wealth,  21  Ky.  L.  R.  1412,  55  S.  W. 

103,  28  Am.  St.  698;  People  v.  Long-  195;    State  v.  Kriechbaum,  81  Iowa 

well,  120  Mich.  311,  79  N.  W.  484.  633,  47  N.  W.  872;   State  v.  Harlan, 

»*  Commonwealth    v.    Williams,    6  10  Kans.  App.  346,  58  Pac.  274;  State 

Gray    (Mass.)    1;    Commonwealth  v.  v.   Ahern,   54    Minn.    195,   55   N.   W. 

Rowe,    14    Gray    (Mass.)    47;    Com-  959;  State  v.  Emery,  98  N.  Car.  668, 

monwealth     v.     Y/allace,     7     Gray  3  S.  E.  810;  State  v.  Hoxsie,  15  R.  I. 

(Mass.)  222;  State  v.  Hurley,  54  Me.  1,  22  Atl.  1059,  2  Am.  St.  838;   State 

562;    State  v.  Day,  37  Me.  244;    see  v.  Shelton,  16  Wash.  590,  48  Pac.  258. 

also,   State  v.  Momberg,    (N.  Dak.)  "=*  State    v.    Tucker,    45    Ark.    55; 

103  N.  W.  566.  Welsh  v.  State,  126  Ind.  71,  25  N.  E. 

»»Crabb  v.  State,  (Fla.)  36  So.  169.  883;  State  v.  Brown,  41  La.  Ann. 
But  such  statutes  making  certain  771,  6  So.  638;  State  v.  Kantler,  33 
things  prima  facie  evidence  are  not  Minn.  69,  21  N.  W.  856;  Brock  v. 
usually  conclusive,  but  mean  that  it  State,  65  Ga.  437;  State  v.  Myers, 
is  competent  and  legally  sufficient  63  Mo.  324;  State  v.  Jamison.  23 
evidence  if  the  jurors  are  satisfied  Mo.  330;  Commonwealth  v.  Black- 
beyond  a  reasonable  doubt.  State  ington,  24  Pick.  (Mass.)  352. 
V.  Momberg,  (N.  Dak.)  103  N.,W. 
566;   Black  Intox.  Liquors,  §  509. 


§    3171.]  MISCELLANEOUS  OFFENSES.  500 

must  in  some  manner  be  shown.»»  But  it  is  usually  impossible  to 
prove  it  by  direct  evidence  and  it  may  be  shown  by  circumstantial  evi- 
dence. It  may  well  bo  inferred  that  if  the  defendant  has  unlawfully 
sold  part  of  the  liquor  he  meant  to  sell  the  rest.  It  has  therefore  been 
held  that  sales  before,  after  and  at  the  time  of  the  alleged  keeping  for 
sale  may  be  shown  in  proof  of  the  intent  to  selL^*^^  And  it  may  be 
inferred  from  many  other  circumstances.  "The  jury,"  it  has  been 
said,  "might  be  well  satisfied  of  the  fact  from  the  manner  in  which 
the  liquors  were  kept  in  the  building,  or  from  the  declarations  of  the 
defendant  in  regard  to  them,  or  from  various  circumstances  which 
might  be  supposed,  without  its  being  shown  that  there  had  been  an 
offer  or  attempt  to  sell.''^"^  There  is  some  apparent  conflict  among 
the  authorities  as  to  whether  the  state  must  show  knowledge  on  the 
part  of  the  accused  where  the  charge  is  for  unlawfully  selling  liquor 
to  a  minor  or  to  a  drunkard.  This  would  seem  to  depend  largely  upon 
the  wording  and  construction  of  the  statute.  If  the  statute  makes  it 
an  offense  only  when  it  is  knowingly  done,  there  is  little  doubt  that 
this  should  be  made  to  appear."-  But  if  the  statute  does  not  use  the 
word  "knowingly"  or  its  equivalent,  the  weight  of  authority  seems  to 
be  to  the  effect  that  ignorance  and  good  faith  are  no  defense.^**^  Where 

*'l  Bishop  Cr.  Proc,  §  1101;  Com-  Hughes,  165  Mass.  7,  42  N.  E.  121; 

monwealth  v.  Canny,  158  Mass.  210,  Commonwealth     v.     Gallagher,     124 

33  N.  E.  340.     But  not  necessarily  Mass.    29;    Commonwealth    v.    Tim- 

to  sell  in  person.    State  v.  Kaler,  56  othy,  8  Gray  (Mass.)  480;  Common- 

Me.  88.  wealth   v.   Wallace,   123    Mass.    401; 

'""  State  v.  Munzenmaier,  24  Iowa  State  v.  Mead's  Liquors,  46  Conn. 
87;  State  v.  Raymond,  24  Conn.  204;  22;  Commonwealth  v.  Meskill,  165 
Hans  v.  State,  50  Neb.  160,  69  N.  W.  Mass.  142,  42  N.  E.  562;  Menken  v. 
838;  State  v.  White,  70  Vt.  225,  39  Atlanta,  78  Ga.  6b8,  2  S.  E.  559. 
Atl.  1085;  State  v.  Plunkett,  64  Me.  ^"=  See,  Williams  v.  State,  23  Tex. 
534,539;  State  v.  Mead's  Liquors,  46  App.  70,  3  S.  W.  661;  Schurzer  v. 
Conn.  22;  see  also.  State  v.  Colston,  State,  (Tex.  Cr.  App.)  25  S.  W.  23 
53  N.  H.  483;  Bishop  Stat.  Crimes,  (burden  on  state);  Brow  v.  State, 
§§  681,  682;  Commonwealth  v.  Mat-  103  Ind.  133,  2  N.  E.  296;  Perry  v. 
thews,  129  Mass.  487;  People  v.  Edwards,  44  N.  Y.  223. 
Caldwell,  107  Mich.  374,  65  N.  W.  i"- Commonwealth  v.  Gould,  158 
213;  but  see  as  to  evidence  of  other  Mass.  499,  33  N.  E.  656;  Common- 
sales  on  a  charge  of  selling,  Chip-  wealth  v.  Julius,  143  Mass.  132,  8 
man  v.  People,  24  Colo.  520,  52  Pac.  N.  E.  898;  State  v.  Sasse,  6  S.  Dak. 
677;  State  v.  Shaw.  58  N.  H.  73;  212,  60  N.  W.  853,  55  Am.  St.  834; 
Fossdahl  v.  State,  89  Wis.  482,  62  Redmond  v.  State,  36  Ark.  58;  State 
N.  W.  185.  v.  Baer,  37  W.  Va.  1.  16  S.  E.  368. 

^"^  State  v.  McGlynn,  34  N.  H.  422,  and    other    authorities    cited    in    17 

427;     see    also,    Commonwealth     v.  Am.  &  Eng.  Ency.  of  Law  335;   br.t 


501 


MALICIOCS    MISCniKF. 


[§  ;>i' 


the  consent  of  the  minor's  ])arent  is  a  defense  under  the  statute,  tlio 
hurden  is  held  to  be  upon  the  seller  to  show  it.^"*  Where  the  charge 
was  for  selling  liquor  to  be  drank  on  the  premises,  it  was  held  that  if 
the  purchaser  drank  the  liquor  on  the  premises  without  objection  from 
the  seller,  it  was  a  fair  presumption  that  it  was  sold  to  be  drank 
there,"**  or  was  with  the  seller's  consent."-"'  So,  where  the  seller 
furnished  bottles,  glasses,  sugar  and  water,  witli  the  liquor  it  was 
lield  that  the  jury  were  justified  in  inferring  tlie  intent  that  the  liquor 
should  be  drank  Avhere  sold.""  In  prosecutions  under  any  of  these 
statutory  provisions  it  is  generally  held  that  the  sale  may  be  proved 
by  an  informer."'^ 

§  3172.  Malicious  mischief — Malicious  trespass. — Malicious  mis- 
chief is  the  wilful  and  malicious  injury  to  or  destruction  of  the  prop- 
erty of  another,"^  and  there  are  now  statutes  in  most  of  the  states 
defining  the  offense  of  malicious  mischief  or  malicious  trespass,  some 
of  which  have  considerably  extended  the  scope  or  limits  of  the  corn- 


see,  Whitton  V.  State,  37  Miss.  379; 
Freiberg  v.  State,  94  Ala.  91,  10  So. 
703;  Ross  v.  State,  116  Ind.  495,  19 
N.  E.  451;  Kreamer  v.  State,  106 
Ind.  192,  6  N.,E.  341;  Aultfather  v. 
State,  4  Ohio  St.  467;  Fielding  v. 
State,  (Tex.  Cr.  App.)  52  S.  W.  69. 
But  the  burden  to  show  good  faith 
may  be  upon  the  accused.  Marshall 
V.  State,  49  Ala.  21;  Fehn  v.  State, 
3  Ind.  App.  568,  29  N.  E.  1137;  Far- 
bach  v.  State,  24  Ind.  77. 

^<"Farrall  v.  State,  32  Ala.  557; 
Edgar  v.  State,  37  Ark.  219;  Monroe 
V.  People,  113  111.  670;  Reynolds  v. 
State,  32  Tex.  Cr.  App.  36,  22  S.  W. 
18;  Hannaman  v.  State,  (Tex.  Cr. 
App.)  33  S.  W.  538;  see  also,  Ran- 
dall V.  State,  14  Ohio  St.  435;  Reich 
V.  State,  63  Ga.  616,  620;  as  to  other 
questions  of  evidence  in  such  cases, 
see.  Commonwealth  v.  Nagle,  157 
Mass.  554,  32  N.  E.  861;  State  v. 
Austin,  74  Minn.  463,  77  N.  W.  301, 
holding  evidence  of  other  sales  in- 
admissible. Ehlert  v.  State,  93  Ind. 
76;   Bain  v.  State,  61  Ala.  75;   Com- 


monwealth V.  O'Brien,  134  Mass. 
198;  State  v.  Cain,  9  W.  Va.  559,  all 
as  to  evidence  of  age. 

''"♦Sanderlin  v.  State,  2  Humph. 
(Tenn.)  315. 

w^  Casey  v.  State,  6  Mo.  646; 
Lucker  v.  Commonwealth,  4  Bush 
(Ky.)  440. 

^'^  Sanderlin  v.  State,  2  Humph. 
(Tenn.)  315. 

'"■  Commonwealth  v.  Murphy,  155 
Mass.  284,  29  N.  E.  469;  Evanston 
v.  Myers,  172  111.  266,  50  N.  E.  204; 
People  V.  Curtis,  95  Mich.  212,  54  N. 
W.  767;  People  v.  Ruch,  113  Mich. 
539,  71  N.  W.  863;  Rater  v.  State, 
49  Ind.  507;  but  see,  People  v. 
Braisted,  13  Colo.  App.  532,  58  Pac. 
796;  Walton  v.  Canon  City,  14  Colo. 
App.  352,  59  Pac.  840. 

^»*19  Am.  &  Eng.  Ency.  of  Law 
(2nd  ed.)  633;  State  v.  Watts.  48 
Ark.  56;  State  v.  Robinson,  3  Dev. 
&  B.  L.  (N.  Car.)  130,  32  Am.  Dec. 
661 :  Flora  First  Nat.  Bank  v.  Burk- 
ett,  101  111.  391. 


3172.] 


MISCELLANEOUS   OFFENSES. 


503 


mon  law  offense.  There  is  some  controversy,  however,  as  to  just  what 
kind  of  property  is  the  subject  of  the  offense.  It  is  distinguished  from 
larceny"^  and  also  from  an  ordinary  trespass,""  The  state  must  show 
the  injury  to  the  property,"^  and  the  malicious  intent,"^  but  the 
latter  may  be  inferred  from  the  nature  of  the  act  and  the  circum- 
stances of  the  case,"^  and  declarations  of  the  accused  may  be  shown, 
in  a  proper  case  to  prove  malice."*  In  some  states  the  malice  must 
be  towards  or  against  the  owner  and  the  weight  of  authority  is  prob- 
ably to  that  effect,"^  but  there  are  many  authorities  to  the  contrary. 
The  ownership  of  the  property  may  be  proved  by  parol."«  The  value 
of  the  property  is  generally  immaterial,"^  unless  the  degree  of  the 
crime  or  penalty  depends  upon  the  value."*    As  a  general  rule  it  may. 


'•»  See,  Rex  v.  Ross,  R.  &  R.  C.  C. 
10;  Hannel  v.  State,  4  Ind.  App.  485, 
30  N.  E.  1118;  Pence  v.  State,  110 
Ind.  95,  10  N.  E.  919;  State  v.  We- 
ber, 156  Mo.  249,  56  S.  W.  729;  State 
v.  Hawkins,  8  Port.  (Ala.)  461,  33 
Am.  Dec.  294;  State  v.  Butler,  65  N. 
Car.  309. 

""State  V.  Robinson,  3  Dev.  &  B. 
L.  (N.  Car.)  130,  32  Am.  Dec.  661; 
People  V.  Smith,  5  Cow.  (N.  Y.) 
258. 

"1  See,  State  v.  Watts,  48  Ark.  56, 
3  Am.  St.  216;  State  v.  Foote,  71 
Conn,  741,  43  Atl.  488,  as  to  what 
injury  is  sufficient.  See  also,  State 
V.  McKee,  109  Ind.  497,  10  N.  E.  405. 
"=  Dawson  v.  State,  52  Ind.  478; 
Gaskill  V.  State,  56  Ind.  550;  Wood- 
ward V.  State,  32  Tex.  Cr.  App.  554, 
28  S.  W.  204. 

"'State  V.  Enslow,  10  Iowa  115; 
State  V.  Linde,  54  Iowa  139,  6  N.  E. 
168;  Hobson  v.  State,  44  Ala.  380; 
State  V.  Toney,  15  S.  Car.  409,  413; 
Chappell  V.  State,  35  Ark.  345 ;  Les- 
sen V.  State,  62  Ind.  437,  440;  Com- 
monwealth V.  Walden,  3  Cush. 
(Mass.)  558;  Harris  v.  State,  73 
Ga.  41;  Shirley  v.  State,  (Tex.  Cr. 
App.)  22  S.  W.  42;  Brown  v.  State, 
26  Ohio  St.  176;  People  v.  Olsen,  6 
Utah  284,  22  Pac.  163;  but  see,  State 
v.  Newby,  64  N.  Car.  23. 


"*  Heron  v.  State,  22  Fla.  86;  Peo- 
ple v.  Ferguson,  119  Mich.  373,  78 
N.  W.  334;  Underbill  Cr.  Ev.,  §  305. 
"'  State  V.  Wilcox,  3  Yerg.  (Tenn.) 
278,  279;  Hampton  v.  State,  10  Lea 
(Tenn.)  639,  641;  Hobson  v.  State, 
44  Ala.  380,  381;  Thomas  v.  State, 
30  Ark.  433;  United  States  v.  Gid- 
eon, 1  Minn.  292;  State  v.  Latham, 
13  Ired.  L.  (N.  Car.)  33,  35;  Hill  v. 
State,  43  Ala.  335;  Shirley  v.  State, 
(Tex.  Civ.  App.)  22  S.  W.  42;  Rex 
V.  Shepherd,  2  Leach  C.  C.  609,  610; 
Rex  V.  Pearce,  1  Leach  C.  C.  594; 
contra.  Brown  v.  State,  26  Ohio  St. 
176,  183;  Duncan  v.  State,  49  Miss. 
331;  State  v.  Doig,  2  Rich.  L.  (S. 
Car.)  179;  Commonwealth  v.  Will- 
iams, 110  Mass.  401;  Mosely  v. 
State,  28  Ga.  190;  see  also.  State  v. 
Phipps,  95  Iowa  491,  64  N.  W.  411. 
Evidence  of  ill-will  towards  prose- 
cuting witness  held  admissible  in 
State  V.  Wideman,  68  S.  Car.  119, 
46  S.  E.  769. 

"'State  V.  Brant,  14  Iowa  180; 
State  V.  Semotan,  85  Iowa  57,  51 
N.  W.  1161. 

"^  Ash  worth  v.  State,  63  Ala.  120 ; 
Heron  v.  State,  22  Fla.  86. 

"'Walker  v.  State,  89  Ala.  74,  8 
So.  144;  State  v.  Heath,  41  Tex.  426; 
Commonwealth  v.  Cox,  7  Allen 
(Mass.)   577. 


503 


SODOMY. 


[§  3n-a. 


perhaps,  be  said  that  any  proper  evidence  tending  to  show  that  the 
accused  was  acting  in  good  faith,  or  under  a  misapprehension  of  his 
rights,  is  relevant.^^"  Thus,  it  has  been  held  that  it  is  a  good  defense 
to  show  that  the  act  was  properly  done  in  the  discharge  of  official 
duty,^2°  or  by  authority  of  the  owner,'' ^^  or  in  the  necessary  protection 
of  property  against  trespassing  animals  or  the  likc,^-^  but  the  mere 
fact  that  the  animal  was  running  at  large,  or  even  trespassing  has  been 
held  to  be  no  defense  if  the  injury  was  malicious.^" 

§  3172a.  Sodomy. — Sodomy,  or  "the  infamous  crime  against 
nature,"  as  the  older  writers  call  it,  is  the  carnal  knowledge  or  copula- 
tion against  nature  by  one  human  being  with  another  or  by  a  human  be- 
ing with  a  beast.^2*  Strictly  speaking,  when  the  copulation  is  with  a 
beast  the  offense  is  called  bestiality  or  buggery.  The  term  sodomy,  how- 


"°  Underbill  Cr.  Ev.,  §  309,  citing 
Lessen  v.  State,  62  Ind.  437;  Palmer 
V.  State,  45  Ind.  388,  391;  Barlow 
V.  State,  120.  Ind.  56.  58,  22  N.  E. 
888;  Goforth  v.  State,  8  Humph. 
(Tenn.)  37;  Reg.  v.  Langford,  1 
Car.  &  M.  602;  Sattler  v.  People,  59 
111.  68,  70;  State  v.  Flynn,  28  Iowa 
26,  27;  Commonwealth  v.  Drass,  146 
Pa.  St.  55,  60;  29  Wkly.  Notes  Cas. 
463,  465;  Reg.  v.  Matthews,  14  Cox 
Cr.  Cas.  5,  7;  State  v.  Haney,  32 
Kans.  428,  430,  4  Pac.  831. 

i^'Schott  V.  State,  7  Tex.  App. 
616;  North  Carolina  v.  Vanderford, 
35  Fed.  282. 

"^Ashworth  v.  State,  63  Ala.  120; 
Mettler  v.  People,  135  111.  410,  25  N. 
E.  748.  So  presumed  where  wife 
was  owner.  Adkin  v.  Pillen, 
(Mich.)   100  N.  W.  176. 

122  Wright  V.  State,  30  Ga.  325,  76 
Am.  Dec.  656;  Thomas  v.  State,  14 
Tex.  App.  200;  Smith  v.  Williams, 
56  J.  P.  840.  Or  that  the  accused 
believed  himself  to  be  the  owner  and 
had  taken  legal  advice.  State  v. 
Sears,  Phil.  L.  (N.  Car.)  146;  Peo- 
ple V.  Kane,  142  N.  Y.  366,  37  N.  E. 
104;  People  v.  Stevens,  109  N.  Y. 
159,  16  N.  E.  53;   see  also,  Windsor 


V.  State,  13  Ind.  375;  Hughes  v. 
State,  103  Ind.  344,  2  N.  E.  956; 
Dawson  v.  State,  52  Ind.  478. 

1"  Cryer  v.  State,  36  Tex.  Cr.  App. 
621,  38  S.  W.  203;  Branch  v.  State, 
41  Tex.  622;  see  also,  Bennefield  v. 
State,  62  Ark.  365,  35  S.  W.  790; 
Snap  V.  People,  19  111.  80,  68  Am. 
Dec.  582;  State  v.  Brigman,  94  N. 
Car.  888;  Thompson  v.  State,  67  Ala. 
106,  42  Am.  R.  101.  Evidence  as  to 
habits  of  animal  held  admissible  in 
Reedy  v.  State,  22  Tex.  App.  271,  2 
S.  W.  591.  Evidence  of  former  of- 
fenses held  inadmissible  in  Smith 
V.  State,  (Tex.  Cr.  App.)  24  S.  W.  27. 

!=♦  Abbott's  Law  Diet.  484;  25  Am. 
&  Eng.  Ency.  of  L.  (2d  ed.)  1144; 
Bac.  Air.,  Lit.  Sodomy;  1  East's  P. 
C.  C.  14,  §  1;  Prindle  v.  State,  31 
Tex.  Cr.  App.  551,  21  S.  W.  360,  37 
Am.  St.  833;  Houselman  v.  People. 
168  111.  172,  48  N.  E.  304;  State  v. 
Chandonette,  10  Mont.  280,  25  Pac. 
438.  If  committed  against  the  order 
of  nature  it  makes  no  difference 
whether  the  other  party  is  a  man  or 
a  woman.  Adams  v.  State,  (Tex. 
Cr.  App.)  86  S.  W.  334;  Lewis  v. 
State,  36  Tex.  Cr.  App.  37,  35  S.  W. 
372,  61  Am.  St.  831. 


§  3172a.] 


MISCELLANEOUS    OFFENSES. 


504 


ever,  is  generally  used  as  including  both  forms  of  the  crime  against 
nature.^-^  Statutes  upon  the  subject  exist  in  most  states,  but  the  of- 
fense is  not  always  defined  and  where  such  is  the  case  and  the  statute 
merely  denounces  the  offense  in  general  terms,  the  common  law  is 
usually  looked  to  for  the  definition.  Penetration  is  an  essential  ele- 
ment of  the  crime,  but  the  slightest  penetration  is  sufficient,^^**  and  it 
may  be  proved  by  circumstantial  evidence.  ^"'^  Actual  emission  is  not 
now  regarded  as  essential.^^*  The  consent  of  the  victim,  whether  of 
age  or  not,  is  no  defense,^'^  but  if  the  latter  is  below  the  age  of  dis- 
cretion the  act  as  to  him  may  not  be  a  criminal  offense,  although  it  is 
as  to  the  other  party. ^^°  The  nature  of  the  evidence,  however,  and  the 
rules  relating  thereto,  as  to  the  actual  commission  of  the  offense  are, 
in  the  main,  the  same  as  in  the  case  of  rape.^^^  In  most  jurisdictions, 
the  testimony  of  the  other  party,  at  least  Avhen  he  is  old  enough  to  be 
considered  an  accomplice  and  does  not  act  under  coercion  must  be 
corroborated  in  order  to  sustain  a  conviction.^^-    A  confession  of  guilt 


'-^  See  Anonymous,  12  Coke  36; 
Ansman  v.  Veal,  10  Ind.  355,  71  Am. 
Dec.  331.   So  is  the  term  buggery. 

^"^  Hodges  v.  State,  94  Ga.  593,  19 
S.  E.  758;  Cross  v.  State,  17  Tex. 
App.  476;  1  East's  P.  C.  C.  10,  §  3; 
1  Hale's  P.  C.  628;  Rex  v.  Reeps- 
pear,  1  Moody,  342. 

^"Collins  V.  State,  73  Ga.  76; 
Cross  V.  State,  17  Tex.  App.  476. 
See  also,  Brauer  v.  State,  25  Wis. 
413. 

"»Rex  V.  Cozins,  6  P.  &  C.  351,  25 
E.  C.  L.  434;  People  v.  Hodgkln,  94 
Mich,  27,  53  N.  W.  794,  34  Am.  St. 
321;  State  v.  Vicknair,  52  La.  Ann. 
1921,  28  So.  273;  State  v.  Gray,  8 
Jones  L.  (N.  Car.)  170;  Williams  v. 
State,  14  Ohio  222,  45  Am.  Dec.  536; 
Commonwealth  v.  Thomas,  1  Va. 
Cas.  307. 

^■^  See,  Reg.  v.  Jellyman,  8  C.  &  P. 
604,  34  E.  C.  L.  547;  Reg.  v.  Lock, 
12  Cox  Cr.  Cas.  244;  People  v.  Mil- 
ler, 66  Cal.  468,  6  Pac.  99;  Mascola 
V.  Monteranto,  61  Conn.  50,  23  Atl. 
714,  29  Am.  St.  170;  Commonwealth 
V.   Snow,   111   Mass.   411;    Territory 


V.  Mahaffy,  3  Mont.  112;  People  v. 
Deschesseri,  69  App.  Div.  (N.  Y.) 
217,  74  N.  Y.  S.  761. 

"» See,  State  v.  Gruss,  28  La.  Am. 
952;  1  East's  P.  C,  c.  14,  §  2. 

i^'i  Cross  v.  State,  17  Tex.  App.  476. 
"The  evidence  is  the  same  as  in 
rape,  with  two  exceptions:  (a)  It 
is  not  necessary  to  prove  the  offense 
to  have  been  committed  without  the 
consent  of  the  person  upon  whom  it 
was  perpetrated,  (b)  Both  parties, 
if  consenting,  are  equally  guilty; 
but  if  one  of  the  parties  is  a  boy  un- 
der the  age  of  fourteen  years,  it  is  a 
felony  in  the  other  only."  Harris' 
Crim.  B.  (Forces'  ed.)  149. 

"=  Commonwealth  v.  Snow,  111 
Mass.  411;  Territory  v.  Mahaffey,  3 
Mont.  112;  Med  is  v.  State,  27  Tex. 
App.  194,  11  S.  W.  112,  11  Am.  St. 
192;  Reg.  v.  Jellyman,  8  C.  &  P. 
604,  34  E.  C.  L.  547.  But  it  is  other- 
wise in  Illinois.  Houselman  v.  Peo- 
ple, 168  111.  174,  48  N.  E.  304;  Kelly 
V.  People,  192  111.  119,  61  N.  E.  425. 
And  one  who  acts  under  coercion 
may   not  be   an    accomplice    within 


505  STATUTORY   CRIMES   GEXKRALLT.  [§    SlTiJ. 

may  be  shown,  where  it  is  voluntary  and  there  is  evidence  of  the 
corpus  delicti  ;"^  but  it  must  be  shown  to  be  voluntary,  and  it  has  been 
held  that  testimony  of  the  police  officer,  before  whom  a  written  con- 
fession was  made,  that  he  told  the  defendant  that  "any  statement  he  . 
might  make  might  bo  used  in  evidence  either  for  or  against  him,"  was 
not  a  sufficient  predicate  for  the  admission  of  the  confession.^-''*  Evi- 
dence of  the  defendant's  good  character  has  been  held  admissible."^ 
So,  on  the  other  hand,  on  the  trial  of  a  prosecution  for  assault  with  in- 
tent to  commit  sodomy  upon  another  while  on  a  moving  train,  evidence 
of  a  prior  assault  by  the  defendant  while  on  the  same  train  an  hour  or 
two  before  was  held  competent  on  behalf  of  the  prosecution,  although 
it  was  committed  in  another  state,  for  the  purpose  of  showing  the  de- 
fendant's real  intention  in  making  the  assault  in  question.^^'' 

§  3173.  Statutory  crimes  generally — Caution. — In  determining 
what  must  be  proved  in  order  to  sustain  a  conviction  under  an  indict- 
ment for  a  statutory  offense,  and,  indeed,  to  some  extent  in  determin- 
ing the  relevancy  of  evidence  generally  in  such  cases,  the  particular 
statute  under  which  the  prosecution  is  instituted  must  be  consulted. 
The  essential  elements  of  the  offense  are  usually  determined  .by  such 
statute,  and,  in  some  instances,  the  defense  is  largely  determined  in 
the  same  way.  So,  as  shown  in  the  preceding  sections,  the  statute 
often  makes  certain  facts  prima  facie  evidence  of  guilt  or  at  least  of 
one  or  more  of  the  essential  elements  of  the  crime.  These  statutes 
vary  considerably  in  their  terms,  and  it  is  therefore  not  only  impossi- 
ble to  lay  down  any  general  rules  for  all  jurisdictions,  but  is  also  un- 
safe to  rely  upon  the  adjudications  in  one  jurisdiction  as  always  ap- 
plicable in  other  jurisdictions  or  under  other  statutes.  Caution  must 
be  observed  to  note  the  differences  in  the  statutes,  and  what  has  been 
said  in  the  preceding  sections  of  this  chapter  must  be  understood,  in 
the  main,  as  confined  to  the  particular  statute  under  consideration 
and  not  as  a  statement  of  general  rules  and  principles  to  be  safely 
applied  in  all  cases. 

the  rule.    People  v.   Miller,  63   Cal.  '=*  Adams  v.  State,  (Tex.  Cr.  App.) 

468;     Mascolo     v.     Monteranto,     61  86    S.   W.    334.   citing   a   number   of 

Conn.   50,    23   Atl.   714,    29    Am.    St.  other  Texas  decisions. 

270  '"'  People  v.   Bahr,  74   N.  Y.  App. 

^'^  See,  Bradford  v.  State,  104  Ala.  Div.  117,  77  N.  Y.  S.  443. 

68,  16  So.  107,  53  Am.  St.  24;   State  >=<=  State  v.  Place,  5  Wash.  773,  32 

V.  Vicknair,  52  La.  Ann.  1921,  28  So.  Pac.  736. 
273. 


EVIDENCE  IN  EQUITY  PROCEEDINGS. 


507 


CHAPTER  CLVI. 


PROCEEDINGS    IN    EQUITY   GENERALLY. 


Sec. 

3174.  Rules   of   evidence   much   the 

same  as  at  law. 

3175.  No  right  to  jury— Province  of 

court — Advisory  verdict. 

3176.  Submitting  issues  to  jury. 

3177.  Effect  of  verdict. 

3178.  Competency — Mode   of  taking 

testimony  and  making  proof. 

3179.  United  States  equity  rules. 

3180.  United    States    equity    rules — 

Answer  as  evidence. 

3181.  United    States    equity    rules- 

Commission    to    take    testi- 
mony— Oral  hearing. 

3182.  United    States    equity    rules- 

Deposition  under  act  of  Con- 
gress. 

3183.  United    States    equity    rules- 

Time     allowed     for    taking 
testimony. 

3184.  United    Slates    equity    rules- 

Form  of  last  interrogatory. 

3185.  United    States    equity    rules— 

On   reference   to   master. 

3186.  United    States    equity    rules- 

Proceedings  before  master. 

3187.  United    States    equity    rules — 

Witnesses  before  master  or 
examiner. 

3188.  United    States    equity    rules — 

Affidavits  and  documents. 

3189.  United    States    equity    rules — 

Examination  of  creditor  or 
claimant. 
oi90.  United    States    equity    rules — 
Accounts  —  Production — Ex- 
amination of  party. 


Sec. 
3191. 

3192. 
3193. 

3194. 
3195. 
3196. 
3197. 

3198. 

3199. 


3200. 


3201. 

3202. 
3203. 
3204. 

3205. 


3206, 
3207. 

3208, 
3209 
3210 
3211 

3212 
09 


United    States   equity    rules- 
Master's  report — Exceptions. 
Sources  of  evidence  in  equity. 
Admissions    generally — Plead- 
ings. 
Admissions  by  agreement. 
Documents — Discovery. 
Proof  of  documents. 
Bill  as  evidence. 
Answer    as    evidence    for    de- 
fendant. 
Answer    as    evidence    for    de- 
fendant —  Limitations     and 
exceptions. 
Answer    as    evidence    for    de- 
fendant— Rule    where    com- 
plainant   does    not    reply — 
Hearing    on    bill     and     an- 
swer. 
Responsive     answer — Illustra- 
tive cases. 
Answers  not  responsive. 
Test  of  responsiveness. 
Answer  false  in  part — Incred- 
ible answer. 
Questioning    competency    and 
impeaching    defendant    who 
answers  under  oath. 
Answer  of  co-defendant. 
Answer   not  evidence   against 

infants. 
Plea  as  evidence. 
CrosG-bill  and  answer. 
Witnesses. 

What    must    be    proved — Bur- 
den. 
Substance  of  issue. 


§§  3174,  3175.]      PROCEEDINGS  IN  EQUITY.  510 

Sec.  Sec. 

3213.  Substance  of  issue— Variance.  3216.  Weight  and  sufficiency  of  evi- 

3i!l4.  Evidence  confined  to  issues.  dence. 

3215.  Parol  and  secondary  evidence.  3217.  Objections  and  exceptions. 

§  3174.  Rules  of  evidence  much  the  same  as  at  law. — The  rules 
of  evidence  are,  in  the  main,  the  same  in  equity  as  at  law.^  It  is 
only  in  a  few  particular  instances  that  they  differ  to  any  great  ex- 
tent. These,  it  is  said,  are  either  the  investigation  of  frauds,  or 
trusts,  or  cases  growing  out  of  the  peculiar  nature  of  the  proceed- 
ings.2  But  the  admission  of  evidence  that  might  be  considered  fatal 
error  at  law,  has  sometimes  been  held  harmless  in  equity,^  and  there 
are  some  respects  in  which  the  rules  in  equity  are  peculiar,  notably, 
the  effect  given  to  an  answer  under  oath,  in  response  to  a  bill  call- 
ing for  such  an  answer.^  So,  in  most  jurisdictions  there  is  no  right 
to  a  jury  trial  in  equity  cases.  Some  instances  of  the  application  in 
equity  of  various  general  rules  of  evidence  will  be  referred  to,  but 
this  chapter  will  be  devoted,  in  the  main,  to  a  consideration  of  pe- 
culiar features  in  the  rules  of  evidence  in  equity  and  to  incidental 
matters  of  practice  in  equity,  and  particular  attention  will  be  given 
to  the  practice  in  the  Federal  Courts. 

§3175.     No  right  to  jury — Province  of  court — Advisory  verdict. 

The  common-law  right  to  trial  by  jury  is  preserved  and  guaranteed 

1  Morrison  v.  Hart,  2  Bibb  (Ky.)  79  Pac.  461;  National  «6;c.  Asso.  v. 
4;  Dwightv.  Pomeroy,  17  Mass.  303,  Burr,  57  Neb.  437,  77  N.  W.  1098; 
9  Am.  Dec.  148;  Eveleth  v.  Crouch,  King  v.  Pony  Gold  Mine  Co.,  28 
15  Mass.  307;  Stevens  v.  Cooper,  1  Mont.  74,  72  Pac.  309;  Sawyer  v. 
Johns.  Ch.  (N.  Y.)  425,  and  authori-  Campbell,  130  111.  186,  22  N.  E.  458; 
ties  cited  in  next  note  below.  The  McDonald  v.  Jacobs,  85  Ala.  64,  4 
burden  of  proof  is  generally  the  So.  605;  Barker  v.  Ray,  2  Russ.  63. 
same,  Pusey  v.  Wright,  31  Pa.  St.  *  So,  testimony  is  more  often  taken 
387.  See  also,  Cochran  v.  Blout,  161  in  equity  by  means  of  depositions 
U.  S.  350,  16  Sup.  Ct.  454.  But  see,  or  in  writing,  and  there  are  peculiar 
Jones  v.  Thomas,  2  Y.  &  C.  498;  rules  as  to  cross-interrogatories, 
Gibson  V.  Jeyes,  6  Ves.  266,  278;  discovery,  and  the  number  of  wit- 
Story  Eq.  Jur.,  §§  311-314.  nesses  required  in  certain  cases,  al- 

=  See,  Manning  v.  Lechmere,  1  Atk.  though  some  of  these  have  been 
453;  Man  v.  Ward,  2  Atk.  228;  Reed  adopted  at  law  under  the  modern 
V.  Clarke,  4  T.  B.  Mon.  (Ky.)  18,  20;  practice  or  statutes.  It  seems,  too, 
Greenleaf  Ev.,  §  250.  Parol  evidence  that  in  some  equity  cases  the  evi- 
ls, perhaps,  more  often  admitted  in  dence  is  required  to  be  clearer  or 
such  cases  than  in  cases  where  there  more  satisfactory  than  in  ordinary 
is  a  writing.  cases  at  law. 

=  See,  Small  v.  Harrington,  (Idaho) 


511 


PROVINCE  or  COURT — JURY. 


[§  3175. 


by  the  constitution  of  the  United  States,  and  by  the  constitutions  of 
the  several  states.  This  constitutional  provision,  however,  is  gen- 
erally construed  as  preserving  the  right  in  substance  as  it  existed 
at  common  law  and  only  in  the  classes  of  cases  to  which  it  was  ap- 
plicable at  common  law.  It  does  not,  therefore,  extend  to  equity 
cases.^  The  court  may,  however,  submit  questions  of  fact  to  the  jury  in 
the  exercise  of  its  discretion.®  But,  unless  the  statute  or  constitution 
gives  such  right,  a  party  is  not  entitled,  as  a  matter  of  right,  to 
have  any  question  submitted  to  a  jury  in  any  equity  case.'^  And  even 
when  questions  of  fact  are  submitted  to  a  jury  by  the  court  in  such 
cases,  the  verdict  of  the  jury  is  merely  advisory  and  not  binding  upon 


*  Goodyear  v.  Providence  Rubber 
Co.,  2  Cliff.  (U.  S.)  351;  Loftus  v. 
Fischer,  113  Cal.  286,  45  Pac.  328; 
State  V.  Churchill,  48  Ark.  426; 
Hughes  V.  Hanna,  39  Fla.  365,  22 
So.  613;  Heacock  v.  Hosmer,  109  111. 
245;  Helm  v.  First  Nat.  Bank,  91 
Ind.  44;  Monnett  v.  Turpie,  132  Ind. 
482,  32  N.  E.  328;  Peden  v.  Cavins. 
134  Ind.  494,  34  N.  E.  7,  39  Am.  St. 
276;  Hull  V.  Bell,  54  Ohio  St.  228, 
43  N.  E.  584;  O'Day  v.  Conn.  131 
Mo.  321,  32  S.  W.  1109;  Lucken  v. 
Wichman,  5  S.  Car.  411;  Phimp- 
ton  V.  Somerset,  33  Vt.  283;  Mead 
v.  "Walker,  17  Wis.  189;  see  also. 
Leach  v.  Kundson,  97  Iowa  643, 
66  N.  W.  913;  Lynch  v.  Metro- 
politan &c.  Co.,  129  N.  Y.  274,  29 
TSI.  E.  315,  26  Am.  St.  523;  Carroll  v. 
Deimel,  95  N.  Y.  252;  Morgan  v. 
Field,  35  Kans.  162,  10  Pac.  448; 
Sumner  v.  Jones.  27  Minn.  312,  7 
N.  W.  265.  For  states  in  which  it 
is  provided  that  there  shall  be  a 
right  to  a  jury  in  equity  cases,  see, 
3  Greenleaf  Ev.  (16th  ed.),  §§  264- 
266  and  notes.  See  also.  Bell  v. 
Woodward,  48  N.  H.  437;  Franklin 
v.  Greene,  2  Allen  (Mass.)  519; 
Dudley  v.  Dudley,  176  Mass.  34,  56 
N.  E.  1011;  Whitted  v.  Fuquay,  127 
N.  Car.  68,  37  S.  E.  141;  Marvin  v. 
Dutcher,  26  Minn.  391,  4  N.  W.  685; 


Loan  &c.  Bank  v.  Peterkin,  52  S. 
Car.  236,  29  S.  E.  546,  68  Am.  St. 
900. 

"Henry  v.  Mayer,  (Ariz.)  53  Pac. 
590;  Phillips  v.  Edsall,  127  111.  535, 
20  N.  E.  801;  Maclellan  v.  Seim,  57 
Kans.  471,  46  Pac.  959;  Blakey  v. 
Johnson,  13  Bush  (Ky.)  197,  26  Am. 
R.  254,  256;  Baker  v.  Safe  Deposit. 
&c.  Co.,  93  Md.  368,  48  Atl.  920; 
Ely  V.  Coontz,  167  Mo.  371,  67  S.  W. 
299;  Lewis  v.  North,  62  Neb.  552,. 
87  N.  W.  312;  Peckham  v.  Van  Ber- 
gen, 8  N.  Dak.  595,  80  N.  W.  759; 
Carlisle  v.  Foster,  10  Ohio  St.  198; 
Palmer  v.  Lawrence,  5  N.  Y.  389; 
Raymond  v.  Flavel,  27  Ore.  219,  40 
Pac.  158;  Frank's  Appeal,  59  Pa.  St. 
190;  Hammond  v.  Foreman,  43  S. 
Car.  264,  21  S.  E.  3.  See,  Reese  v. 
Youtsey,  113  Ky.  839,  69  S.  W.  708. 

'  Keith  V.  Henkleman,  173  111.  137, 
50  N.  E.  692;  Detroit  Nat.  Bank  v. 
Blodgett,  115  Mich.  160,  73  N.  W. 
120,  885;  Cole  v.  Bean,  1  Ariz.  377, 
25  Pac.  538;  Cornett  v.  Combs,  21 
Ky.  L.  R.  837,  53  S.  W.  32;  McBride 
V.  Stradley,  103  Ind.  465,  2  N.  E. 
358;  Sharmer  v.  Mcintosh,  43  Neb. 
509,  61  N.  W.  727;  Lucken  v.  Wich- 
man, 5  S.  Car.  411;  Pairo  v.  Bethell, 
75  Va.  825,  and  authorities  cited  in 
first  note  to  this  section. 


§  3175.]  PROCEEDINGS  IX  EQUITY.  513 

the  chancellor  or  court.^  In  a  recent  case  in  an  action  to  quiet  title 
and  enjoin  the  defendants,  the  court,  treating  the  case  as  having  both 
legal  and  equitable  issues,  proceeded  with  the  trial  by  a  jury  stating 
that  if  it  appeared  that  the  case  was  wholly  equitable,  the  jury  might 
be  considered  as  merely  advisory.  The  jury  found  a  verdict  for  the 
defendant  as  to  each  parcel  of  land,  and  under  instructions,  brought 
in  a  special  verdict,  in  which  separate  findings  were  made  as  to  each 
defendant,  all  being  in  harmony  with  the  general  verdict  and  judg- 
ment. On  appeal  it  was  held  that  there  was  no  such  irregularity 
as  would  warrant  a  reversal.''  It  has  also  been  held  that  where  the 
same  judge  before  whom  the  jury  trial  was  had  on  certain  issues 
acted  as  chancellor  in  making  the  decree  in  the  suit  in  equity  and 
relied  upon  the  same  proofs,  a  previous  order  for  the  trial  by  jury 
and  a  certificate  of  the  result  by  such  judge  to  himself  as  chancellor 
were  unnecessary,  although  it  would  have  been  more  formal  if  the 
court  in  equity  had  ordered  a  jury  to  be  impaneled  on  the  law  side 
of  the  court  and  the  verdict  had  been  certified  by  the  clerk  to  the 
equity  side.^°  And  in  the  same  case  it  was  held  that  where  the 
chancellor  submits  issues  to  a  jury  for  his  own  information  and 
adopts  the  finding  as  satisfactory  to  him  upon  the  whole  evidence,  the 
court  on  appeal  will  not  consider  formal  exceptions  to  rulings  on 
the  evidence  in  the  course  of  the  trial  before  tlie  jury.^^  As  said  in 
another  case:  "Where  a  court  of  chancery  suspends  proceedings  in 
a  cause  in  order  to  allow  the  parties  to  bring  an  action  at  law  to 
try  the  legal  right,  it  does  not  assume  to  interfere  with  the  course 

*Pittenger    v.    Pittenger,    208    111.  in  the  preceding  notes  to  this  sec- 

582,  70  N.  E.  699;  Maynard  v.  Rich-  tion. 

ards,    166    111.    466,    46   N.   E.    1138;  °  ToUec    Ranch    &c.    v.    Cook,    24 

Platter  v.   Elkhart,   103   Ind.  360,  2  Utah  453,  67  Pac.   1123.    In  a  very 

N.  E.  544;  Seisler  v.  Smith,  150  Ind.  similar  case  it  was  held  that  it  was 

88,  46  N.  E.  993;   Bick  v.  Williams,  an  equity  case  and  that  a  trial  by 

181   Mo.   526,   80   S.  W.   885;    Curtis  jury   was   properly    refused.    Miller 

V.  Kirkpatrick,  (Idaho)  75  Pac.  760;  v.  Indianapolis,  123  Ind.  196,  24  N. 

Brownlee  v.  Martin,  21  S.  Car.  392;  E.  228. 

Hall  V.  Linn,  8  Colo.  264,  5  Pac.  641;  "Wilson  v.  Riddle,  123  U.  S.  608, 

Bentley   v.    Davidson,    74   Wis.    420,  8  Sup.  Ct.  255.  As  to  the  latter  prac- 

43   N.   W.   139;    Idaho  &c.   Improve-  t.ce  see,  Kerr  v.  South  Park  Comr's, 

ment  Co.  v.  Bradbury,  132  U.  S.  509,  117  U.  S.  379,  6  Sup.  Ct.  801. 

10  Sup.  Ct.  177;  Barnes  v.  Stuart,  1  ''See  also,  Brockett  v.  Brockett,  3 

Y.  &  C.  119,  139.    This  is  also  held  How.    (U.  S.)    691;   Watt  v.  Starke, 

intimated  in  most  of  the  cases  cited  101  U.  S.  247;   Johnson  v.  Harmon, 

94  U.  S.  371. 


513  SUBMITTING  ISSUES   TO   JURY.  [§    31TG. 

of  proceedings  in  the  court  of  law,  and  a  motion  for  new  trial  must 
be  made  to  that  court;  but  where  it  directs  an  issue  to  be  tried  at 
law,  a  motion  for  a  new  trial  must  be  made  to  the  court  of  chancery ; 
and  for  that  purpose  the  party  applying  for  a  new  trial  must  procure 
notes  of  the  proceeding  and  of  the  evidence  given  at  the  trial  for  the 
use  of  the  chancellor.  This  is  done  either  by  having  the  proceed- 
ings and  evidence  reported  with  the  verdict,  or  by  moving  the  chan- 
cellor to  send  to  the  judge  who  tried  the  issue,  for  his  notes  of  trial; 
or  procuring  a  statement  of  the  same  in  some  other  way.  The  chan-. 
cellor  then  has  before  him  the  evidence  given  to  the  jury,  and  the 
proceedings  at  the  trial,  and  may  be  satisfied,  by  an  examination 
thereof,  that  the  verdict  ought  not  to  be  disturbed.  The  evidence  and 
proceedings  then  become  a  part  of  the  record,  and  go  up  to  the  court 
of  appeal  if  an  appeal  is  taken."^^ 

§  3176.  Submitting  issues  to  jury. — As  indicated  in  the  last  pre- 
ceding section,  where  courts  of  equity  and  courts  of  law  are  en- 
tirely separated,  the  case  is  usually  sent  to  the  law  court  by  the 
court  of  equity,  1^  when  it  determines  to  have  certain  issues  sub- 
mitted to  a  jury  for  an  advisory  verdict,  or  to  the  law  side  where 
the  same  court  has  an  equity  side  and  a  law  side  each  distinct  from 
the  other.  But  in  many  of  the  states  the  same  court  exercises 
both  law  and  equity  jurisdictions,  without  any  separation,  and  may 
call  a  jury  whenever  it  sees  fit.  In  either  case  issues  should  not  be 
submitted  to  the  jury  where  they  are  immaterial*  or  there  is  no 
disputed  question  of  fact  to  be  determined  on  conflicting  evidence.^^ 
The  chancellor  usually  directs  what  issues  should  be  submitted,^® 
and  it  is  irregular  to  submit  the  whole  case  to  the  jury  without 

^Watt  V.   Starke,   101   U.    S.   247.  Wilkins,   79   Ga.    675,   4    S.   E.    261; 

250.    See  also,  Bootle  v.  Blimdell,  19  Doss  v.  Tyack,  14  How.  (U.  S.)  297. 

Ves.  494,  500;  Barker  v.  Ray,  2  Russ.  i"  Barth  v.  Rosenfeld,  36  Md.  604; 

63,  75.  Dorr    v.    Tremont    Nat.    Bank,    128 

"See,    2    Daniell's    Ch.    Pr.    1265,  Mass.  349;   Ringwalt  v.  Ahl,  36  Pa. 

1266  and  notes;   1  Spence  Eq.  Jur  St.  336;  Black  v.  Shreve,  13  N.  J.  Eq. 

337;  1  Hoffman  Ch.  Pr.  502,  503.  455;    Black  v.   Lamb,   12   N.   J.   Eq. 

"Fenno  v.  Primrose,  125  Fed.  635;  108;    Jackson  v.  Spivey,  63  N.  Car. 

Carter  v.  Carter,  82  Va.  624;  Comly  261;  Moore  v.  Simpson,  5  Litt.  (Ky.) 

V   Waters,  2  Del.  Ch.  72.  49;    Trimmer    v.    Liles,    58    S.    Car. 

"  Carradine  v.  Carradine,  58  Miss  284,  36  S.  E.  652.   As  shown  by  these 

286,    38    Am.    R.    324;    Shoemaker's  authorities  it  may  frame  the  issues 

Estate,  3  Brewst.  (Pa.)  312;  Landis  and  even  give  directions  as  to  evi- 

V.  Lyon,  71  Pa.   St.   473;    Miller  v.  dence  and  the  like. 
Vol.  4  Elliott  Ev.— 33 


§  3177.] 


PROCEEDINGS    IN    EQUITY. 


514 


specifying  the  object  of  inquiry  or  requiring  any  specific  finding  as 
to  particular  facts  by  the  jury." 

§  3177.  Effect  of  verdict. — As  the  verdict  of  the  jury  is  merely 
advisory,  where  the  right  of  submission  to  a  jury  is  not  given  by  tbe 
statute  or  the  constitution,  the  court  may  either  adopt  or  reject  it 
according  as  it  appears  to  be  satisfactory  and  in  accordance  with  the 
chancellor's  views  of  the  evidence  or  otherwise.^ ^  But  it  is  said  that 
if  it  is  adopted  by  the  court  it  has  the  conclusive  effect  of  a  final 
adjudication,^''  although  it  is  also  held  that  the  parties  are  entitled 
to  the  opinion  of  the  court  itself  and  that  it  is  error  for  the  court 
to  simply  enter  a  decree  on  the  jury's  verdict  without  exercising  any 
judgment  of  its  own.^°  So,  although  the  verdict  is  regarded  as  ad- 
visory rather  than  binding,  it  has  been  held  that  it  is  entitled  to 
weight  and  that  the  disapproval  and  finding  of  the  chancellor,  con- 
trary to  the  verdict  may  be  reviewed  on  appeal  and  reversed  if  there 
has  been  an  abuse  of  discretion  or  the  finding  is  clearly  wrong.- ^ 


"Milk  V.  Moore,  39  111.  584;  Lake 
Erie  &c.  R.  Co.  v.  Griffin,  92  Ind. 
487;  Hulley  v.  Chedic,  22  Nev.  127, 
36  Pac.  783,  58  Am.  St.  729;  Brew- 
ster V.  Bours,  8  Cal.  501;  Hall  v. 
Doran,  6  Iowa  433;  Greene  v.  Har- 
ris, 11  R.  I.  5;  see  also,  Dunn  v. 
Dunn,  11  Mich.  284;  Brandt  v. 
Wheaton,   52   Cal.  430. 

^*  Henry  v.  Mayer,  (Ariz.)  53  Pac. 
590;  Hinkle  v.  Hinkle,  55  Ark.  583, 
18  S.  W.  1049;  Moore  v.  Copp,  119 
Cal.  429,  51  Pac.  630;  McDonald  v. 
Thompson,  16  Colo.  13,  26  Pac.  146; 
Brady  v.  Yost,  6  Idaho  273,  55  Pac. 
542;  Biggerstaff  v.  Biggerstaff,  180 
111.  407,  54  N.  E.  333;  Brundage  v. 
Deschler,  131  Ind.  174,  29  N.  E.  921; 
Acker  v.  Leland,  109  N.  Y.  5,  15  N. 
E.  743;  Arnold  v.  Sinclair,  12  Mont. 
248,  29  Pac.  1124;  Wilson  v.  Wilson, 
142  Pa.  St.  572,  21  Atl.  985;  Lowe  v. 
Traynor,  6  Coldw.  (Tenn.)  633; 
Hull  V.  Watts,  95  Va.  10,  27  S.  E. 
829;  Powers  v.  Large,  75  Wis.  494, 
43  N.  W.  1120,  17  Am.  St.  195; 
Clyde  V.  Richmond  &c.  Co.,  18  C.  C. 


A.  467,  72  Fed.  121;  Kohn  v.  Mc- 
Nulta,  147  U.  S.  238,  13  Sup.  Ct.  298, 
and  other  authorities  cited  ante, 
§  3175,  notes  7,  8. 

^^  Clink  V.  Thurston,  47  Cal.  21; 
Wilson  V.  Ward,  26  Colo.  39,  56  Pac. 
5.3;  Kammermeyer  v.  Hilz,  116 
Wis.  313,  92  N.  W.  1107.  But  see, 
Saylor  v.  Hicks,  36  Pa.  St.  392. 
Compare,  Peckham  v.  Armstrong, 
(R.  I.)   40  Atl.  419. 

="  Fisher  v.  Carroll,  46  N.  Car.  27. 
See  also,  McNaughton  v.  Osgood,  114 
N.  Y.  574,  21  N.  E.  1044;  Brownlee 
V.  Martin,  21  S.  Car.  392;  Farmers' 
Bank  v.  Butterfield,  100  Ind.  229; 
Vickers  v.  Buck  Stove  &c.  Co.,  65 
Kans.  97,  68  Pac.  1081. 

=1  Miller  v.  Wills,  95  Va.  337,  28 
S.  E.  337;  Grigsby  v.  Weaver,  5 
x^eigh  (Va.)  197;  Humphreys  v. 
Ward,  74  N.  Car.  784;  McDaniel  v. 
Marygold,  2  Iowa  500,  65  Am.  Dec. 
786;  Orgain  v.  Ramsay,  3  Humph. 
(Tenn.)  580.  But  see,  F.  Meyer 
Boot  &c.  Co.  V.  Shenkberg  Co.,  11  S. 
Dak.  620,  80  N.  W.  126. 


515  COMPKTI-XCY — TAKING    TESTIMONY.  [§    3178. 

§  3178.  Competency — Mode  of  taking  testimony  and  makin|;  proof. 
The  same  rules  as  to  competency  apply,  in  general,  in  equity  as  at 
law."  But  when  interest  was  a  disqualification  the  courts  of  equity 
were  sometimes  more  inclined  to  hear  interested  parties  than  were 
the  courts  of  law.  It  is  provided  by  acts  of  Congress  that  in  the 
courts  of  the  United  States  no  witness  shall  be  excluded  in  any  ac- 
tion on  account  of  color,  or  in  any  civil  action,  because  he  is  a  party 
to  or  interested  in  the  issue  tried.  But  in  actions  by  or  against 
executors,  administrators,  or  guardians,  in  which  judgment  may  be 
rendered  for  or  against  them,  neither  party  shall  be  allowed  to 
testify  against  the  other,  as  to  any  transaction  with  or  state- 
ment by  the  testator,  intestate,  or  ward,  unless  called  to  testify 
thereto  by  the  opposite  party,  or  required  to  testify  thereto  by  the 
court.  In  all  other  respects  it  is  provided  that  the  laws  of  the  state 
in  which  the  court  is  held  shall  be  the  rules  of  decision  as  to  the 
competency  of  witnesses  in  the  courts  of  the  United  States  in  trials 
at  common  law  and  in  equity  and  admiralty.^^  It  is  also  provided 
that  the  mode  of  proof  in  causes  of  equity  and  of  admiralty  and 
maritime  jurisdiction  shall  be  according  to  rules  now  or  hereafter 
prescribed  by  the  Supreme  Court,  except  as  herein  especially  pro- 
vided.^* And  in  a  more  recent  statute  there  is  a  provision  to  the 
effect  that  in  addition  to  the  mode  of  taking  the  depositions  of  wit- 
nesses in  causes  pending  at  law  or  equity  in  the  district  and  circrat 
courts  of  the  United  States,  it  shall  be  lawful  to  take  the  depositions 
or  testimony  of  witnesses  in  the  mode  prescribed  by  the  laws  of  the 
state  in  which  the  courts  are  held.-°  The  section  providing  that 
the  practice,  pleadings,  forms  and  modes  of  proceeding  in  the  courts 
of  the  United  States  in  civil  causes  at  law  shall  conform  as  near  as 
may  be  to  those  of  the  state  courc  does  not  apply  to  equity  cases, 
and  it  has  been  held  that  although  depositions  of  the  adverse  parties 

"Foster    Fed.    Pr.,    §    274,    citing  ==•27  Stat,  at  Large  7;  U.  S.  Comp. 

Cornett  v.   Williams,   20   Wall.    (U.  St.    1901,   p.    C64.     Depositions    may 

S.)  226.  also  be  taken  de  bene  esse.    U.   S. 

"U.   S.   Rev.   Stat,   §§    858,   1977.  Rev.   Stat,  §   863,   et  seq.;    1   Story 

James  v.   Atlantic  &c.   Co.,   3   Cliff.  Eq.    PI.,    §    307;    Foster    Fed.    Pr., 

(U.  S.)   614;   De  Beaumont  v.  Web-  §§  278,  280.    Or  to  perpetuate  testl- 

ster,  71  Fed.  226,  81  Fed.  535.  mony,    Foster    Fed.    Pr.,    §    279,    et 

=*U.  S.  Rev.  Stats.,  §  862.    Hanks  seq.;  U.  S.  Rev.  Stat.  §  866,  et  seq.; 

Dental  Assn.  v.  International  Tooth  2  Desty  Fed.  Proc,  §  385,  et  seq. 
Crown  Co.,  194  U.  S.  303,  24  Sup.  Ct 
700. 


§  3179.]  PROCEEDINGS  IN  EQUITY.  516 

are  taken  "as  under  cross-examination"  pursuant  to  a  state  statute, 
yet  by  so  doing  the  party  taking  and  using  such  depositions  made  the 
adverse  parties  his  own  witnesses,  and,  while  not  concluded  by  their 
evidence,  cannot  properly  contend  in  a  United  States  court,  that 
they  were  unworthy  of  credit.^®  Under  the  old  chancery  practice, 
the  evidence  and  the  proceedings  generally  were  required  to  be  made 
part  of  the  record^^  and  the  evidence  was  taken  secretly  on  commis- 
sion or  before  an  examiner,  and  not  viva  voce  in  open  court,  and 
was  not  made  public  until  publication  passed.^^  But,  while  evidence 
is  still  usually  taken  more  often  before  an  examiner  or  by  depositions 
than  viva  voce  in  open  court,  yet  witnesses  are  now  sometimes  ex- 
amined orally  and  even  in  open  court  at  the  hearing.  The  matter 
is  largely  regulated  by  statutes.  The  tendency  is  to  do  way  to  a 
greater  or  less  degree  with  the  old  distinctions  between  the  manner 
of  making  proof  in  equity  and  that  of  making  proof  or  taking  testi- 
mony at  law,  especially  in  regard  to  taking  depositions.^® 

§  3179.  United  States  equity  rules. — Pursuant  to  the  authority 
vested  in  the  Supreme  Court  of  the  United  States,  rules  of  practice 
for  the  courts  of  equity  of  the  United  States  have  been  promulgated 
by  that  court.  In  the  main  they  follow  closely  the  practice  of  the 
English  chancery  courts,  and  one  of  the  rules  provides  that  in  so 
far  as  the  rules  prescribed  by  the  United  State  Supreme  Court  or 
by  the  circuit  courts,  not  inconsistent  therewith,  do  not  apply,  tJie 
practice  of  the  High  Court  of  Chancery  in  England  shall  furnish 
analogies  to  regulate  the  practice.^^  In  so  far  as  these  rules  relate 
to  evidence  and  the  practice  in  taking  testimony  and  making  proof, 
the  substance  of  all  that  are  deemed  important  will  be  stated  in  the 
following  sections. 

2«Dravo  v.  Fabel,  132  U.  S.  487,  10  Am.  Dec.  187;  Maher  v.  Bull,  39  111. 

Sup.  Ct.  170.  531;    Wallen  v.   Cummings,  187  111. 

"See,  Mason  v.  Bair,  33  111.  194;  451,  58  N.  E.  1095;  Blease  v.  Gar- 
Smith  V.  Newland,  40  111.  100;  Ben-  lington,  92  U.  S.  1. 
nett  V.  Welch,  15  Ind.  332;  Cham-  =°  U.  S.  Eq.  Rule  90.  So  in  Flor- 
bers  V.  Cochran,  18  Iowa  159;  Mc-  Ida,  Long  v.  Anderson,  (Fla.)  37  So. 
Intyre  v.  Ledward,  Smed.  &  M.  Ch.  216,  219;  Kahn  v.  Weinlander,  39 
(Miss.)  91.  Fla.  210,  22  So.  653.    There  are  also 

-^  See,  2  Daniell  Ch.  Fr.   (1st  ed.),  other  States  that  adopt  the  practice 

c.  20;   1  Daniell  Ch.  Pr.    (6th  ed.)  in    the    United     States     courts    of 

837,  et  seq.,  945,  946.  equity  so  far  as  applicable,  and  the 

-^  See,  Kelly  v.  Wayne  Co.  Cir.  practice  of  the  High  Court  of  Chan- 
Judge,  90  Mich.  264,  51  N.  W.  278;  eery,  in  other  respects,  so  far  as  ap- 
Payne   v.   Danley,   18   Ark.    441,    68  plicable. 


517         UNITED    STATES    RULE TAKING    TESTIMONY.       [§§    3180,    3181. 

§3180.     United  States  equity  rules — Answer  as  evidence.— If  the 

complainant,  in  his  bill,  shall  waive  an  answer  under  oath,  or  shall 
only  require  an  answer  under  oath  with  regard  to  certain  specific 
interrogatories,  the  answer  of  the  defendant,  thougn  under  oath, 
except  such  part  thereof  as  shall  be  directly  responsive  to  such  inter- 
rogatories, shall  not  be  evidence  in  his  favor,  unless  the  cause  be  set 
down  for  hearing  on  bill  and  answer  only ;  but  it  may  be  used  as  an 
affidavit,  with  the  same  effect  as  heretofore,  on  a  motion  to  grant  or 
dissolve  an  injunction,  or  on  any  other  incidental  motion  in  the 
cause;  but  this  shall  not  prevent  a  defendant  from  becoming  a  wit- 
ness in  his  own  behalf  under  section  three  of  the  act  of  Congress  of 
July  2,  1864." 

§  3181.  United  States  equity  rules — Commissibn  to  take  testi- 
mony— Oral  hearing. — After  the  cause  is  at  issue,  commissions  to 
take  testimony  may  be  taken  out  in  vacation  as  well  as  in  term,  jointly 
by  both  parties,  or  severally  by  either  party,  upon  interrogatories, 
filed  by  the  party  taking  out  the  same  in  the  clerk's  office,  ten  days'. 
notice  thereof  being  given  to  the  adverse  party  to  file  cross-interroga- 
tories before  the  issuing  of  the  commission ;  and  if  no  cross-interroga- 
tories are  filed  at  the  expiration  of  the  time,  the  commission  may 
issue  ex  parte.  In  all  cases  the  commissioner  or  commissioners  may- 
be named  by  the  court  or  by  a  judge  thereof;  and  the  presiding  judge 
of  the  court  exercising  jurisdiction  may,  either  in  term  time  or  in 
vacation,  vest  in  the  clerk  of  the  court  general  power  to  name  com- 
missioners to  take  testimony.  Either  party  may  give  notice  to  the 
other  that  he  desires  the  evidence  to  be  adduced  in  the  cause  to  be 
taken  orally,  and  thereupon  all  the  witnesses  to  be  examined  shall 
be  examined  before  one  of  the  examiners  of  the  court,  or  before  an 
examiner  to  be  specially  appointed  by  the  court.  The  examiner,  if 
he  so  request,  shall  be  furnished  with  a  copy  of  the  pleadings.  Such 
examination  shall  take  place  in  the  presence  of  the  parties  or  their 
agents  by  their  counsel  or  solicitors,  and  the  witnesses  shall  be  sub- 
ject to  cross-examination  and  re-examination,  all  of  which  shall  be 
conducted  as  near  as  may  be  in  the  mode  now  used  in  common-law 
courts.  The  depositions  taken  upon  such  oral  examination  shall  be 
reduced  to  writing  by  the  examiner  in  the  form  of  question  put  and 
answer  given;  provided  that,  by  consent  of  parties,  the  examiner 

''Amendment  to  U.  S.  Eq.  Rule  an  answer  as  evidence  will  be  fully 
41.    See,  13  Wall.  XI.    The  effect  of     considered   in  subsequent  sections. 


§  3181.]  PROCEEDINGS  IN  EQUITY.  518 

may  take  down  the  testimony  of  any  witness  in  the  form  of  narrative. 
At  the  request  of  either  party,  with  reasonable  notice,  the  deposition 
of  any  witness  shall,  under  the  direction  of  the  examiner,  be  taken 
down  either  by  a  skillful  stenographer  or  by  a  skillful  typewriter,  as 
the  examiner  may  select,  and,  when  taken  stenographically,  shall  be 
put  into  typewriting  or  other  writing;  provided,  that  such  sten- 
ographer or  typewriter  has  been  appointed  by  the  court,  or  is  ap- 
proved by  both  parties.  The  testimony  of  each  witness,  after  such 
reduction  to  writing,  shall  be  read  over  to  him  and  signed  by  him  in 
the  presence  of  the  examiner  and  of  such  of  the  parties  or  counsel 
as  may  attend;  provided,  that  if  the  witness  shall  refuse  to  sign 
his  deposition  so  taken,  then  the  examiner  shall  sign  the  same,  stat- 
ing upon  the  record  the  reasons,  if  any,  assigned  by  the  witness  for 
such  refusal.  The  examiner  may,  upon  all  examinations,  state  any 
special  matters  to  the  court  as  he  shall  think  fair;  and  any  question 
or  questions  which  may  be  objected  to  shall  be  noted  by  the  examiner 
upon  the  depositions,  but  he  shall  not  have  power  to  decide  on  the 
competency,  materiality,  or  relevancy  of  the  questions ;  and  the  court 
shall  have  power  to  deal  with  the  costs  of  incompetent,  immaterial, 
or  irrelevant  depositions  or  parts  of  them,  as  may  be  just.  In  cases 
of  refusal  of  witnesses  to  attend,  to  be  sworn,  or  to  answer  any  ques- 
tion put  by  the  examiner,  or  by  counsel  or  solicitor,  the  same  practice 
shall  be  adopted  as  is  now  practiced  with  respect  to  witnesses  to  be 
produced  on  examination  before  an  examiner  of  said  court  on  written 
interrogatories.  Notice  shall  be  given  by  the  respective  counsel  or 
solicitors  to  the  opposite  counsel  or  solicitors,  or  parties,  of  the  time 
and  place  of  the  examination,  for  such  reasonable  time  as  the  ex- 
aminer may  fix  by  order  in  each  cause.  When  the  examination  of 
witnesses  before  the  examiner  is  concluded,  the  original  depositions, 
authenticated  by  the  signature  of  the  examiner,  shall  be  transmitted 
by  him  to  the  clerk  of  the  court,  to  be  there  filed  of  record  in  the 
same  mode  as  prescribed  in  section  865  of  the  revised  statutes.  Testi- 
mony may  be  taken  on  commission  in  the  usual  way  by  written  inter- 
rogatories and  cross-interrogatories,  on  motion  to  the  court  in  term 
time,  or  to  a  judge  in  vacation,  for  special  reasons  satisfactory  to 
the  court  or  judge.  Where  the  evidence  to  be  adduced  in  a  cause 
is  to  be  taken  orally,  as  before  provided,  the  court  may,  on  motion 
of  either  party,  assign  a  time  within  which  the  complainant  shall 
take  his  evidence  in  support  of  the  bill,  and  a  time  thereafter  within 
which  the  defendant  shall  take  his  evidence  in  defense,  and  a  time 
thereafter  within  which  the  complainant  shall  take  his  evidence  in 


519  TAKING   TESTIMONY.  [§§    3182,    3183. 

reply  and  no  further  evidence  shall  be  taken  in  the  cause,  unless 
by  agreement  of  the  parties,  or  by  leave  of  court  first  obtained,  on 
motion  for  cause  shown.  The  expense  of  the  taking  down  of  deposi- 
tions by  the  stenographer  and  putting  them  into  typewriting  or 
other  writing  shall  be  paid  in  the  first  instance  by  the  party  calling 
the  witness,  and  shall  be  imposed  by  the  court,  as  part  of  the  costs, 
upon  such  party  as  the  court  shall  adjudge  should  ultimately  bear 
them.  Upon  due  notice  given,  as  prescribed  by  previous  order,  the 
court  may  at  its  discretion  permit  the  whole  or  any  specific  part  of 
the  evidence  to  be  adduced  orally  in  open  court,  on  finel  hearing.^^ 

§  3182.  United  States  equity  rules — Deposition  under  act  of  Con- 
fess.— Testimony  may  also  be  taken  in  the  cause,  after  it  is  at  issue, 
by  deposition,  according  to  the  acts  of  congress.  But  in  such  case, 
if  no  notice  is  given  to  the  adverse  party  of  the  time  and  place  of 
taking  the  deposition,  he  shall,  upon  motion  and  affidavit  of  the  fact, 
be  entitled  to  a  cross-examination  of  the  witness,  either  under  a  com- 
mission or  by  a  new  deposition  taken  under  the  acts  of  congress,  if 
a  court  or  judge  thereof  shall,  under  all  the  circumstances,  deem  it 
reasonable.^* 

§  3183.  United  States  equity  rules — Time  allowed  for  taking  tes- 
timony.— Three  months  and  no  more  shall  l)e  allowed  for  the  taking 
of  testimony  after  the  cause  is  at  issue,  unless  the  court  or  a  judge 
thereof  shall,  upon  special  cause  shown  by  either  party,  enlarge  the 
time;  and  no  testimony  taken  after  such  period  shall  be  allowed  to 
be  read  in  evidence  at  the  hearing.  Immediately  upon  the  return  of 
the  commissions  and  depositions  containing  the  testimony  into  the 
clerk's  office,  publication  thereof  may  be  ordered  in  the  clerk's 
office,  by  any  judge  of  the  court  upon  due  notice  to  the  parties, 
or  it  may  be  enlarged,  as  he  may  deem  reasonable  under  all  the  cir- 
cumstances. But  by  consent  of  the  parties  publication  of  the  testi- 
mony may  at  any  time  pass  in  the  clerk's  office,  such  consent  being 
in  writing,  and  a  copy  thereof  entered  in  the  order  book  or  indorsed 
upon  the  deposition  or  testimony.^*    According  to  the  old  chancery 

^=U.  S.  Eq.  Rule  67  and  amend-  "'U.  S.  Eq.  Rule  68. 
ments.  See,  139  U.  S.  707;  149  U.  ^'U.  S.  Eq.  Rule  69.  See,  Ingle  v. 
S.  793;  12  Sup.  Ct.  iii.  See  also,  Jones,  9  Wall.  (U.  S.)  486;  West- 
Sickles  V.  Gloucester  Co.,  3  Wall,  ern  Elec.  Co.  v.  Capital  &c.  Co.,  86 
Jr.  (U.  S.)  186;  Clark,  In  re,  9  Fed.  769;  Mackaye  v.  Mallory,  80 
Blatchf.   (U.  S.)    372.  Fed.    256.     In    Long    v.    Anderson, 


§§  3184,  3185.]      PROCEEDINGS  IN  EQUITY.  520 

practice  the  time  for  taking  testimony  was  closed  by  getting  an 
order  passing  publication,  which  usually  had  to  be  preceded  by  a  rule 
to  produce  witnesses.^^  But  now  in  England  as  well  as  in  most  of 
the  states  the  time  is  fixed  by  statute  or  rule.  As  a  general  rule  evi- 
dence should  not  be  taken  before  there  is  an  issue,  and  the  cause  is 
ready  for  proof,^*'  and  if  taken  after  the  time  limited,  a  deposition 
will  generally  be  suppressed  or  excluded,  unless  the  time  has  been 
extended.^ ^  But  the  court  may  generally  extend  the  time  for  good 
cause.^* 

§  3184.     United  States  equity  rules — Form  of  last  interrogatory. 

The  last  interrogatory  in  the  written  interrogatories  to  take  testi- 
mony, now  commonly  in  use,  shall  in  the  future  be  altered,  and 
stated  in  substance,  thus:  "Do  you  know,  or  can  you  set  forth  any 
other  matter  or  thing  which  may  be  a  benefit  or  advantage  to  the 
parties  at  issue  in  this  cause,  or  either  of  them,  or  that  may  be  ma- 
terial to  the  subject  of  this  your  examination,  or  the  matters  in  ques- 
tion in  this  cause?  If  yea,  set  forth  the  same  fully  and  at  large  in 
your  answer."^" 

§  3185.     United    States    equity    rules — On    reference    to    master^ 

Upon  a  reference  to  a  master  it  shall  be  the  duty  of  the  master,  as 
soon  as  he  reasonably  can,  after  the  same  is  brought  before  him,  to 
assign  a  time  and  place  for  proceedings  in  the  same,  and  to  give 

(Fla.)    37   So.   216,   it  is  held   that  (Va.)   730;  Hamersly  v.  Lambert,  2 

while    it    is    ordinarily    within    the  Johns.    Ch.    (N.    Y.)    433;    Wood   v. 

discretion  of  the  lower  court  to  give  Mann,  2  Sumn.   (U.  S.)  316,  30  Fed. 

or  refuse  further  time,  yet  this  dis-  Cas.  No.  17953. 

oration  may  be  reviewed  on  appeal,  =*  Magbee  v.  Kennedy,  26  Fla.  158, 

and,    under    the    circumstances    of  7  So.  529;  Warren  v.  Bunch,  80  Ga. 

that  case  the  refusal  to  extend  the  124,  7  S.  E.  270;  Becker  v.  Saginaw 

time  was  held  to  be  error.    In  some  Cir.  Judge,  117  Mich.  328,  75  N.  W. 

states    the    time    is    fixed    at    four  885;    Mechanics   Labor    Sav.    Bank, 

months.    See,  Hart  v.  Bloomfield,  66  In  re,  10  N.  J.  L.  J.  112;  Shea's  Ap- 

Miss.  100,  5  So.  620;  Rather  v.  Wil-  peal,  121  Pa.  St.  203,  15  Atl.  629,  1 

liams,  94  Tenn.  543,  29  S.  W.  898.  L.  R.  A.  422;  Ingle  v.  Jones,  9  Wall. 

^=1  Daniell  Ch.  Pr.  (6th  ed.)   946.  (U.  S.)  486;  Coon  v.  Abbott,  37  Fed. 

=""  Harris  v.  Moore,  72  Ala.  507.  98. 

^^Call  V.  Perkins,  68  Me.  158;  Ab-  =' U.    S.    Eq.    Rule    71.     See    also, 

bott  V.  Alsdorf,  19  Mich.  157;  Wen-  Rhoades  v.  Selin,  4  Wash.    (U.  S.) 

ham  V.  Switzer,  48  Fed.  612;  Woos-  715;    Dodge  v.   Israel,  4  Wash.    (U. 

ter  V.   Clark,  9  Fed.  854.    See  also,  S.)  323. 
Richardson     v.     Duble,     33     Gratt. 


521  PROCEEDINGS   BEFORE   MASTER.  [§§    3186,    3187. 

due  notice  thereof  to  each  of  the  parties  or  their  solicitors;  and  if 
either  party  shall  fail  to  appear  at  the  time  and  place  appointed,  the 
master  shall  be  at  liberty  to  proceed  ex  parte,  or,  in  his  discretion, 
to  adjourn  the  examination  and  proceedings  to  a  future  day,  giving 
notice  to  the  absent  party  or  his  solicitor  of  such  adjournment;  and 
it  shall  be  the  duty  of  the  master  to  proceed  with  all  reasonable  dili- 
gence in  every  such  reference,  and  with  the  least  practicable  delay, 
and  either  party  shall  be  at  liberty  to  apply  to  the  court,  or  a  judge 
thereof,  for  an  order  to  the  master  to  speed  the  proceedings  and  to 
make  his  report,  and  to  certify  to  the  court  or  judge  the  reasons  for 
any  delay.'*" 

§  3186.  United  States  equity  rules — Proceedings  before  master. 
The  master  shall  regulate  all  the  proceedings  in  every  hearing  before 
him,  upon  every  such  reference;  and  he  shall  have  full  authority  to 
examine  the  parties  in  the  cause,  upon  oath,  touching  all  matters  con- 
tained in  the  reference;  and  also  to  require  the  production  of  all 
books,  papers,  writings,  and  other  documents  applicable  thereto;  and 
also  to  examine  on  oath,  viva  voce,  all  witnesses  produced  by  the 
parties  before  him,  and  to  order  the  examination  of  other  witnesses 
to  be  taken,  under  a  commission  to  be  issued  upon  his  certificate  from 
the  clerk's  office,  or  by  deposition,  according  to  the  acts  of  congress, 
or  otherwise,  as  hereinafter  provided ;  and  also  to  direct  the  mode 
in  which  the  matters  requiring  evidence  shall  be  proved  before  him; 
and  generally  to  do  all  other  acts  and  direct  all  other  inquiries  and 
proceedings  in  the  matter  before  him,  which  he  may  deem  necessary 
and  proper  to  the  justice  and  merits  thereof  and  the  rights  of  the 
parties.^^ 

§3187.  United  States  equity  rules — Witnesses  before  master  or 
examiner. — Witnesses  who  live  within  the  district  may,  upon  due 
notice  to  the  opposite  party,  be  summoned  to  appear  before  the  com- 
missioner appointed  to  take  testimony,  or  before  a  master  or  ex- 
aminer appointed  in  any  cause,  by  subpoena  in  the  usual  form,  which 
may  be  issued  by  the  clerk  in  blank  and  filled  up  by  the  party  pray- 
ing the  same,  or  by  the  commissioner,  master,  or  examiner,  roquir- 

^U.    S.    Eq.    Rule    75.     See    also,         "  U.  S.  Eq.  Rule  77.    See  authori- 
Foote  V.  Silsby,  3  Blatchf.    (U.  S.)     ties  cited  under  Rule  75,  supra. 
507;    Consolidated    Fastener    Co.    v. 
Columbian  &c.  Co.,  85  Fed.  54. 


§§  3188-3191.]      PROCEEDINGS  IN  EQUITY.  522 

ing  the  attendance  of  the  witnesses  at  the  time  and  place  specified, 
who  shall  be  allowed  for  attendance  the  same  compensation  as  for 
attendance  in  court;  and  if  any  witness  shall  refuse  to  appear  or  to 
give  evidence,  it  shall  be  deemed  a  contempt  of  the  court,  which, 
being  certified  to  the  clerk's  office  by  the  commissioner,  master,  or 
examiner,  an  attachment  may  issue  thereupon  by  order  of  the  court 
or  of  any  judge  thereof,  in  the  same  manner  as  if  the  contempt  were 
for  not  attending,  or  for  refusing  to  give  testimony  in  the  court. 
But  nothing  herein  contained  shall  prevent  the  examination  of  wit- 
nesses viva  voce  when  produced  in  open  court,  if  the  court  shall,  in 
its  discretion,  deem  it  advisable.*^ 

§  3188.     United   States   equity   rules — Affidavits   and   documents. 

All  affidavits,  depositions,  and  documents  which  have  been  previously 
made,  read  or  used  in  the  court,  upon  any  proceeding  in  any  cause 
or  matter,  may  be  used  before  the  master.*^ 

§  3189.  United  States  equity  rules — Examination  of  creditor  or 
claimant. — The  master  shall  be  at  liberty  to  examine  any  creditor  or 
other  person  coming  in  to  claim  before  him,  either  upon  written  in- 
terrogatories or  viva  voce,  or  on  both  modes,  as  the  nature  of  the  case 
may  appear  to  him  to  require.  The  evidence  upon  such  examinations 
shall  be  taken  down  by  the  master,  or  by  some  other  person  by  his 
order  and  in  his  presence,  if  either  party  requires  it,  in  order  that  the 
same  may  be  used  by  the  court  if  necessary.** 

§  3190.  United  States  equity  rules — Accounts — Production — Ex- 
amination of  party. — All  parties  accounting  before  a  master  shall 
bring  in  their  respective  accounts  in  the  form  of  debtor  and  cred- 
itor; and  any  of  the  other  parties  who  shall  not  be  satisfied  with  the 
accounts  so  brought  in  shall  be  at  liberty  to  examine  the  accounting 
party,  viva  voce,  or  upon  interrogatories  in  the  master's  office,  or  by 
deposition,  as  the  master  shall  direct.*^ 

§  3191.     United  States  equity  rules — Master's  report — Exceptions. 

The  master,  as  soon  as  his  report  is  ready,  shall  return  the  same 
into  the  clerk's  office,  and  the  day  of  the  return  shall  be  entered  by 

*^U.  S.  Eq.  Rule  78.    See,  Erie  R.         *' U.  S.  Eq.  Rule  80. 
Co.    V.    Heath,    8    Blatchf.     (U.    S.)         "  U.  S.  Eq.  Rule  81.    See,  Story  v. 

413;    Gass  v.  Stinson,  2  Sumn.    (U.  Livingston,  13  Pet.    (U.  S.)    359. 
S.)   605.  *'U.  S.  Eq.  Rule  79. 


523  SOURCE  OF  EVIDENCE PLEADINGS.   f§§  3192,  3193. 

the  clerk  in  the  order  book.  The  parties  shall  have  one  month  from 
the  time  of  filing  the  report  to  file  exceptions  thereto;  and  if  no  ex- 
ceptions are  within  that  period  filed  by  either  party,  the  report  shall 
stand  confirmed  on  the  next  rule  day  after  the  month  is  expired.  If 
exceptions  are  filed  they  shall  stand  for  hearing  before  the  court,  if 
the  court  is  then  in  session ;  or,  if  not,  then  at  the  next  sitting  of  the 
court  which  shall  be  held  thereafter  by  adjournment  or  otherwise.*'^ 

§  3192.  Sources  of  evidence  in  equity. — "The  sources  of  evidence 
in  equity,"  says  Professor  Greenleaf,  "are  principally  four:  namely, 
first,  the  intelligence  of  the  court,  or  the  notice  which  it  Judicially 
takes  of  certain  things,  and  the  things  which  it  presumes;  secondly, 
the  admissions  of  the  parties  contained  in  their  pleadings  and  agree- 
ments; thirdly,  documents;  and  fourthly,  the  testimony  of  wit- 
nesses."*^ The  first  of  these  has  already  been  sufficiently  considered 
in  the  first  volume  of  this  work.  The  others,  so  far  as  they  are  not 
already  sufficiently  treated  or  have  peculiar  features  in  equity,  will 
be  considered  in  this  part  of  the  work. 

§3193.  Admissions  generally — Pleadings. — Admissions  are  either 
actual  or  constructive.  Actual  admissions,  it  is  said,  are  made  either  in 
the  pleadings  or  by  agreement,  and  constructive  admissions,  are  those 
which  are  implied  from  a  party's  act.**  The  most  ordinary  instance  of 
a  constructive  admission,  says  Daniell,  "is  where  a  plea  has  been  put  in 
by  a  defendant,  eitlier  to  the  whole,  or  part  of  the  bill,  in  which  case 
the  bill,  or  that  part  of  it  which  is  pleaded  to,  so  far  as  it  is  not  con- 
troverted by  the  plea,  is  admissible  to  be  true.  A  plaintiff,  there- 
fore, where  he  has  replied  to  a  plea,  may  rest  satisfied  with  that  ad- 
mission, and  need  not  go  into  evidence  as  to  that  part  of  his  case 
which  the  plea  is  intended  to  cover, — unless  the  plea  is  a  negative 
plea ;  for  in  that  case  it  will  be  necessary  for  him  to  prove  the  matter 
negatived,  for  the  purpose  of  disproving  the  plea,  in  the  same  manner 

*«U.    S.    Eq.   Rule   83.     See,    Shef-  Davis,  26  C.  C.  A.  675,  81  Fed.  907; 

field  &c.   Co.   v.   Gordon,    151   U.   S.  Pewabie  Min.  Co.  v.  Mason,  145  U. 

285,  14  Sup.   Ct.  343;    Garretson  v.  S.  349,  12  Sup.  Ct.  887. 

Clark.   15   Blatchf.    (U.   S.)    70;    St.  ■'■3    Greenleaf    Ev..    §    268.     "Evi- 

Colombe    v.    United    States,    7    Pet.  dence  consists  of  admissions  upon 

(U.  S.)  625;  Gay  Mfg.  Co.  v.  Camp,  the  record,  documents,  and  the  tes- 

15  C.  C.  A.  67,  68  Fed.  67;   Central  timony   of  witnesses."    Foster  Fed. 

Trust  Co.  V.  Georgia  Pac.  R.  Co..  83  Pr.,  §  264. 

Fed.  386;  Farrar  v.  Bernheim,  21  C.  ^*  Foster  Fed.  Pr.,  §§  265,  266. 
C.   A.    136,    75    Fed.    136;    Burke   v. 


§  3193.]  PROCEEDINGS  IN  EQUITY.  524 

as  he  may  enter  into  evidence,  for  the  purpose  of  disproving  matter 
which  has  been  pleaded  affirmatively."*'^  So,  allegations  of  facts  in 
a  bill  are  admissions  in  favor  of  the  defendant  of  the  facts  so  al- 
leged, and,  therefore,  need  not  be  proved  by  other  evidence ;  for,  , 
whether  they  are  true  or  not,  the  plaintiff,  by  averring  them  in  his  " 
bill,  and  making  them  part  of  the  record,  thereby  admits  that  they 
are  true  at  least  for  the  purposes  of  the  particular  case.  The  bill 
may  be  read  as  evidence,  for  the  defendant,  of  any  of  the  facts  therein 
positively  averred.^"  But  the  defendant's  right  to  read  the  plaintiff's 
bill  as  evidence  against  him,  according  to  the  old  chancery  practice  is 
confined  to  the  bill  as  it  stands  on  the  record.  If  the  bill  has  been 
amended,  the  amended  bill  being  the  only  one  upon  the  record,  the 
defendant  has  in  general  no  right  to  read  the  original  bill  in  evi- 
denced^ Where,  however,  the  amendment  has  altered  the  effect  of 
the  answer  to  the  original  bill,  or  rendered  it  obscure,  the  defendant 
has  a  right,  or  at  least  may  be  permitted,  to  read  the  original  bill 
for  the  purpose  of  explaining  the  answer. ^^  Although  a  plaintiff,  by 
his  replication,  denies  the  truth  of  the  whole  of  the  defendant's  an-  ;' 
swer,  he  does  not  thereby  preclude  himself  from  reading  whatever  " 
portion  of  it  he  thinks  will  support  his  case, — unless  the  answer  is 
that  of  an  infant.^^  Indeed,  express  admissions  in  an  answer,  in  the 
absence  of  mistake,  may  be  conclusive  against  the  defendant.^*  And 
it  may  be  used  against  the  defendant  as  an  admission  even  though  it 

^n  Daniell  Ch.  Pr.  837.  22  S.  W.  1002;  Buzard  v.  MeAnulty, 

^"Ives  V.  Medcalfe,  1  Atk.  63,  65.  77  Tex.   438,   14   S.  W.   138;    but  as 

See,  Hart  v.  Ten  Eyck,  2  Johns.  Ch.  shown    in    some    of    the   authorities 

(N.  Y.)   62,  91;   Beech  v.  Haynes,  1  above    cited,    and    in    many    others 

Tenn.  Ch.  569,  576.  cited  in  Vol.  I,  §  236,  original  plead- 

"1  Daniell  Ch.  Pr.  839.    See  also,  ings,       although       withdrawn       or 

Callan  v.   McDaniel,   72  Ala.   96;    3  amended,  may  often  be  introduced 

Greenleaf  Ev.,  §  275.  in  evidence  in  most  jurisdictions  as 

°^  Fitzgerald  v.  O'Flaherty,  1  Moll,  admissions     in     the     same     cause, 

347;    Hales  v.  Pomfret,  Dan.  Exch.  though    not    conclusive.     See    also, 

141;    Steuart   v.    Gladstone,    10    Ch.  Soaps  v.  Eichberg,  42  HI.  App.  375. 

Div.  626,  644;  Smith  v.  Davidson,  41  The    bill    is   generally    held    compe- 

Fed.  172.    See  also,  Hurst  v.  Jones,  tent  if   signed   and   verified  by  the 

10    Lea    (Tenn.)    8;    Kankakee    &c.  party.    Callan  v.  McDaniel,  72  Ala. 

R.  Co.  v.  Horan,  131  111.  288,  23  N.  96;    Robbins  v.  Butler,   24  111.   387; 

E.  621;  Fleischmann  v.  Stern,  90  N.  see  also,  Wadsworth  v.  Duncan,  164 

Y.  110;    Brown  v.  Pickard,   4  Utah  111.  360,  45  N.  E.  435. 
292,   9   Pac.    573;    Bailey   v.    O'Ban-         "See,  1  Daniell  Ch.  Pr.  169,  839, 

non,    28    Mo.    App.    39;    Wheeler   v.  840. 

West,  71  Cal.  126,  11  Pac.  871;  Bax-         "^^  Marsh  v.  Mitchell,  26  N.  J.  Eq. 

ter  V.  New  York  &c.  R.  Co.,   (Tex.)  497;   Home  Ins.  Co.  v.  Myer,  93  111. 


.■525  ADMISSIONS    BY    AGREEMENT.  [§    319-i. 

is  not  verified.^'^     But  the  defendant  is  usually  entitled  to  have  it 
taken  as  an  entirety.^** 

§  3194.  Admissions  by  agreement. — Admissions  by  agreement  be- 
tween the  parties  are  said  to  be  "those  which,  for  the  sake  of  saving 
expense  or  preventing  delay,  the  parties,  or  their  solicitors,  agree 
upon  between  themselves.  Admissions  of  this  description  depend 
entirely  upon  the  circumstances  of  each  case,  and  little  can  now  be 
said  respecting  them  beyond  drawing  to  the  practitioner's  notice  the 
necessity  there  exists  that  they  should  be  clear  and  distinct.  In  gen- 
eral, they  ought  to  be  in  writing  and  signed  either  by  the  parties  or 
their  solicitors;  and  the  signature  of  the  solicitor  employed  by  the 
party  is  considered  sufficient  to  bind  his  principal,  the  court  in- 
ferring that  he  had  authority  for  that  purpose.  It  does  not,  how- 
ever, appear  to  be  necessary  that  an  agreement  to  admit  a  particular 
fact  should  be  in  writing.""  In  some  jurisdictions,  however,  either 
by  statute,  rule  of  court,  or  the  settled  practice,  the  agreement  or 
-stipulation  must  be  in  writing,  and,  in  some  instances,  filed  or  other- 
wise made  part  of  the  record.  Admissions  are  also  sometimes  made 
in  open  court  to  avoid  the  necessity  of  proving  on  the  trial  the  facts 
admitted.  Such  admissions  as  the  latter  stand  as  absolute  proof 
upon  such  trial  and  no  evidence  to  the  contrary  will,  ordinarily,  be 
heard.^®  The  general  subject  of  admissions  by  parties  and  others 
has  already  been  fully  treated.^^ 

271;  Robinson  v.  Philadelphia  &c.  "1  Daniell  Ch.  Pr.  848.  See  also, 
R.  Co.,  28  Fed.  57  7.  The  answer  as  Laing  v.  Raine,  2  B.  &  P.  85;  Mar- 
evidence  will  hereafter  be  consid-  shall  v.  Cliff,  4  Campb.  133;  Young 
ered,  but  see  also  as  to  admissions  v.  Wright,  1  Campb.  139.  See  gen- 
therein.  Wills  v.  McKinney,  30  N.  erally,  Vol.  I,  §  256. 
J.  Eq.  465;  Manley  v.  Mickle,  55  N.  '^^  Lyman  v.  Kansas  City  &c.  R. 
J.  Bq.  563,  37  Atl.  738;  Potter  v.  Co.,  101  Fed.  636;  Hearne  v.  De 
Potter,  1  Ves.  Sr.  274;  Royall  v.  Young,  111  Cal.  373,  43  Pac.  1108; 
McKenzie,  25  Ala.  363;  Daub  v.  Rockwell  v.  Graham,  9  Colo.  36,  10 
Englebach,  109  111.  267;  McNutt  v.  Pac.  284;  Wineteer  v.  Simonson,  75 
Dare,  8  Bl'ackf.    (Ind.)    35.  HI.    App.    653;     Farmers'    Bank    v. 

"Daub  v.  Englebach,  109  111.  267;  Sprigg,  11  Md.  389;  Blake  v.  Sawin, 

Craft  V.  Schlag,  61  N.  J.  Eq.  567,  49  10    Allen     (Mass.)     340.     See    also, 

Atl.  431;    Whittemore  v.  Patten,  81  Thompson  v.  Thompson,  9  Ind.  323, 

Fed.  527.  68    Am.    Dec.    638.     As    to    whether 

■^^  Miller  v.  Avery,  2  Barb.  Ch.  (N.  they  extend  to  other  trials  depends 

Y.)    582;   McNutt  v.  Dare,  8  Blackf.  mainly  upon  the  language  used  and 

(Ind.)    35;    Ormond  v.   Hutchinson,  the  proper  construction  of  the  ad- 

13  Ves.  47;    Freeman  v.  Tatham,  5  mission.   See,  Vol.  I,  §  256. 

Hare  329.  '"  See,  Vol.  I,  Chap.  XI,  XII. 


§  3195.] 


PROCEEDINGS    IN    EQUITY. 


52G 


§  3195.  Documents — Discovery. — The  subject  of  documentary  evi- 
dence and  the  production,  inspection  and  authentication  of  docu- 
ments has  been  fully  treated  in  another  volume  of  this  Avork,^°  It 
will,  therefore,  be  sufficient  in  this  chapter  to  call  attention  to  par- 
ticular rules  in  equity  in  regard  to  proving  documents  and  using 
them  as  evidence.  The  subject  of  discovery  has  also  been  consid- 
ered,®^ and  it  has  been  shown  that  in  most  jurisdictions  there  is  no 
longer  any  necessity  to  resort  to  the  old  equity  bill  of  discovery.  It 
was  also  pointed  out  in  the  same  connection  that  there  is  much  con- 
flict among  the  authorities  as  to  whether  the  statutory  mode  is  ex- 
clusive or  merely  cumulative,  but  this  phase  of  the  subject  was  not 
fully  treated.  In  a  few  jurisdictions  it  is  expressly  provided  that  the 
remedy  by  bill  of  discovery  shall  still  remain,  and  in  others  it  is  ex- 
pressly abrogated.  A  majority  of  the  statutes,  however,  contain  no 
express  provision  upon  the  subject.  The  weight  of  authority  in  the 
state  courts  and  in  England  is  to  the  effect  that  they  are  merely 
cumulative  and  do  not  take  away  the  jurisdiction  in  equity  to  proceed 
by  bill  of  discovery.*'-  But  there  are  decisions  of  some  courts  of  high 
standing  to  the  contrary.''^  The  federal  decisions  are  likewise  con- 
flictins:.*'^ 


=°  See,  Vol.  II,  chap.  59-70. 

^1  See  Vol.  II,  chap.  55. 

"-Wood  V.  Hudson,  96  Ala.  469,  11 
So.  530;  Handley  v.  Hefim,  84  Ala. 
600,  4  So.  725;  Semple  v.  Murphy,  8 
B.  Mon.  (Ky.)  271;  Union  Pass.  R. 
Co.  V.  Baltimore,  71  Md.  238,  17 
Atl.  933;  Post  v.  Toledo  &c.  R.  Co., 
144  Mass.  341,  13  N.  E.  540,  59  Am. 
R.  86;  Millsaps  v.  Pfeiffer,  44  Miss. 
805;  Northrop  v.  Flaig,  57  Miss. 
754;  Reynolds  v.  Burgess  Sulphite 
Fibre  Co.,  71  N.  H.  332,  51  Atl. 
1075,  93  Am.  St.  535,  57  L.  R.  A. 
949;  Wheeler  v.  Wadleigh,  37  N.  H. 
55;  Miller  v.  U.  S.  Casualty  Co.,  61 
N.  J.  Eq.  110,  47  Atl.  509;  Ames  v. 
New  Jersey  Franklinite  Co.,  12  N. 
J.  Eq.  66,  72  Am.  Dec.  385;  Howell 
V.  Asbmore,  9  N.  J.  Eq.  82,  57  Am. 
Dec.  371;  Block  v.  Universal  Ins. 
Co.,  16  Phila.  72;  Milne's  Appeal, 
(Pa.)  2  Atl.  534;  Starkweather  v. 
Williams,  21  R.  I.  55,  41  Atl.  1003; 


Elliston  V.  Hughes,  1  Head. 
(Tenn.)  225;  Hurricane  Tel.  Co.  v. 
Mohler,  51  W.  Va.  1,  41  S.  E.  421; 
Russell  V.  Dickeschied,  24  W.  Va. 
61;  Carver  v.  Pinto  Leite,  L.  R.  7 
Ch.  App.  90,  41  L.  J.  Ch.  92,  25  L.  T. 
N.  S.  722,  20  Wkly.  Rep.  134;  Lovell 
V.  Galloway,  17  Beav.  1;  Birch  V- 
Mather,  L.  R.  22  Ch.  D.  629,  52  L.  J. 
Ch.  292;  Attorney-General  v.  Gas- 
kill,  L.  R.  20  Ch.  Div.  519. 

«^Turnbull  v.  Crick,  63  Minn.  91,. 
65  N.  W.  135;  Leuthold  v.  Fair- 
child,  35  Minn.  99,  27  N.  W.  503,  28 
iN.  W.  218;  Bond  v.  Worley,'  26  Mo. 
253;  Chapman  v.  Lee,  45  Ohio  St. 
356,  13  N.  E.  736;  Hall  v.  Joiner,  1 
S.  Car.  186;  Love  v.  Keowne,  58- 
Tex.  191;  Cargill  v.  Kountze,  86 
Tex.  386,  22  S.  W.  1015,  25  S.  W.  13, 
40  Am.  St.  853,  24  L.  R.  A.  183; 
Cleveland  v.  Burnham,  60  Wis.  16,. 
17  N.  W.  126,  18  N.  W.  190. 

"  To   the   effect   that   the   remedy 


527 


PROOF  OF  DOCUMENTS. 


[§  3196. 


§'  3196.  Proof  of  documents. — As  a  general  rule,  written  instru- 
ments which  do  not  prove  tliemeelves,  and  the  execution  of  which 
is  not  admitted,  must  be  proved  by  the  same  evidence  in  equity 
as  in  law.''^  But,  in  equity,  such  evidence,  where  the  practice  is 
not  changed,  is  in  most  instances,  taken  b}^  deposition  or  the  like 
in  advance  of  the  hearing.  It  was  the  practice  in  chancery,  however, 
to  permit  proof  viva  voce  at  the  hearing  of  the  mere  execution  of 
an  exhibit,  not  impeached  by  the  pleadings,*^"  and  the  same  practice 
is  recognized  and  adopted  in  this  country.*^^  So,  in  some  instances, 
where  essential  documents  had  for  some  excusable  cause  been  omitted 
in  taking  proofs  the  courts  allowed  them  to  be  proved  at  the  hearing. 
But  in  such  cases  an  order  must  first  be  obtained  for  that  purpose*'® 
and  notice  given,''^  and  a  satisfactory  excuse  shown  for  having  failed 
to  make  the  proof  in  the  usual  way.'^"  As  a  general  rule,  however, 
documents  set  out  or  distinctly  referred  to  in  the  pleadings  and  ad- 
mitted,'^ or  of  such  a  character  that  they  prove  themselves,^'  may 


provided  by  statutes  is  merely 
cumulative  see,  McMullen  Lumber 
Co.  V.  Strother,  136  Fed.  295;  In- 
dianapolis Gas  Co.  V.  Indianapolis, 
90  Fed.  196;  Kelley  v,  Boettcher,  29 
C.  C.  A.  14,  85  Fed.  55;  National 
&c.  Co.  V.  Interchangeable  &c.  Co., 
83  Fed.  26;  Continental  Nat.  Bank 
V.  Heilman,  66  Fed.  184;  Brown  v. 
McDonald,  133  Fed.  897;  Bryant  v. 
Leyland,  6  Fed.  125;  see  also,  Slater 
V.  Banwell,  50  Fed.  150;  Brown  v. 
Swann,  10  Pet.  (U.  S.)  497.  To  the 
effect  that  bills  of  discovery  are 
abolished  see,  Safford  v.  Ensign 
Mfg.  Co.,  56  C.  C.  A.  630,  120  Fed. 
480;  Rindskopf  v.  Platto,  29  Fed. 
130;  Heath  v.  Erie  R.  Co.,  9  Blatchf. 
(U.  S.)  316,  11  Fed.  Cas.  No.  6307; 
Preston  v.  Smith,  26  Fed.  884;  see 
also,  Sunset  Tel.  Co.  v.  Eureka,  122 
Fed.  960.  For  citations  and  reviews 
of  many  of  the  conflicting  authori- 
ties upon  both  sides  of  the  subject, 
see  notes  in  24  L.  R.  A.  183,  and  41 
Am.  St.  389;  also,  57  L.  R.  A.  949; 
57  Cent.  Law  Jour.  209. 

<»1  Daniell  Ch.  Pr.  874,  880;  Gres- 
ley  Eq.  Ev.    (Am.  Ed.)   118,  119. 


''•'Lake  v.  Skinner,  1  Jac.  &  W.  9; 
Rowland  v.  Sturgis,  2  Hare  520; 
Wood  V.  Mann,  2  Sumn.  (U.  S.) 
316;  Barfield  v.  Kelly,  4  Russ.  355, 
4  Eng.  Ch.  355. 

«' Hughes  v.  Phelps,  3  Bibb  (Ky.) 
198;  Wood  v.  Mann,  2  Sumn.  (U. 
S.)  316,  30  Fed.  Cas.  No.  17953; 
Foote  V.  Lefavour,  6  Ind.  473;  Mor- 
ton V.  White,  5  Ind.  338;  Pierce  v. 
Prude,  3  Ala.  65;  Nick  v.  Rector,  4 
Ark.  251. 

^**  Bachelor  v.  Nelson,  Walk. 
(Mich.)  449;  Pardee  v.  De  Cala,  7 
Paige  (N.  Y.)  132;  Emerson  v. 
Berkley,  4  Hen.  &  M.  (Va.)  441; 
Chandler  v.  Neale,  2  Hen.  &  M. 
(Va.)    124. 

°''*  Bachelor  v.  Nelson,  Walk. 
(Mich.)  449;  Pardee  v.  De  Cala,  7 
2  Johns.  Ch.  (N.  Y.)  481;  1  Daniell 
Ch.  Pr.    (6th  ed.)   884. 

""  Bachelor  v.  Nelson,  Walk. 
(Mich.)  449;  Consequa  v.  Fanning, 
2  Johns.  Ch.  (N.  Y.)  481. 

"  Dey  V.  Dunham,  2  Johns.  Ch. 
(N.  Y.)   182. 

'-  Bachelor  v.  Nelson,  Walk. 
(Mich.)    449;    Pardee  v.  De  Cala,  7 


^  3197.]  PROCEEDINGS  IN  EQUITY.  528 

he  read  at  the  hearing  without  order  or  further  proof;  but  it  seems 
that  documents  which  are  not  set  out  or  referred  to  in  the  plead- 
ings, although  they  prove  themselves,  cannot  be  so  read  without  at 
least  giving  notice  of  an  intention  to  read  them  at  the  hearing.''^ 

§  3197.  Bill  as  evidence. — As  elsewhere  shown,  a  bill  may  often 
be  read  in  evidence  against  the  complainant.  But  it  is,  ordinarily, 
not  in  itself,  evidence  against  the  defendant  except,  perhaps,  in 
certain  cases  where  it  is  verified  and  may  have  the  force  and  efEect 
of  an  affidavit.^*  No  such  rule  applies  to  a  bill  as  that  which  applies 
to  a  responsive  answer  called  for  and  made  under  oath.  But  it  is 
said  by  Professor  Greenleaf  that  "the  bill  alone  may  also  sometimes 
be  read  by  the  plaintiff,  as  evidence  against  the  defendant,  of  his  ad- 
mission of  the  truth  of  the  matters  therein  alleged,  and  not  noticed 
in  his  answer.  The  principle,  governing  this  class  of  cases,  is  this, 
that  the  defendant,  being  solemnly  required  to  admit  or  deny  the 
truth  of  the  allegation,  has,  by  his  silence,  admitted  it.""  As  further 
said  by  the  same  author,  however,  this  doctrine  applies  only  to  facts 
either  directly  charged  to  be  within  the  knowledge  of  the  defendant, 
or  which  may  fairly  be  presumed  to  be  so."*'  If  he  replies,  instead 
of  excepting,  he  must  generally  prove  the  allegations.'^^  There  are 
cases,  however,  in  which  the  bill  may  be  taken  pro  confesso,  and  in 
such  cases  the  allegations  will  be  taken  as  admitted.'^^    And  where 

Paige    (N.  Y.)    132.    See,  1  Daniell  rett,    1    J.    J.    Marsh.     (Ky.)     212; 

Ch.  Pr.  (6th  ed.)   862,  884.  Tobin    v.    Wilson,    3    J.    J.    Marsh. 

"Miller  v.  Avery,  2  Barb.  Ch.  (N.  (Ky.)    63;    Pierson   v.   Meaux,   3   A. 

Y.)   582;   Kellogg  v.  Wood,  4  Paige  K.  Marsh.  (Ky.)  4. 

(N.  Y.)    578.    See  also,   Bennett  v.  "Cochran    v.     Couper,     1     Harr. 

Welch,   15   Ind.   332;    Crist  v.   Bra-  (Del.)    200;    Wilson   v.   Kinney,   14 

shiers,  3  A.  K.  Marsh.    (Ky.)    170;  111.  27;    and  in  Trenchard  v.  War- 

Potorf  V.  Fishback,  2  A.  K.  Marsh,  ner,  18  111.  142;  Young  v.  Grundy,  6 

(Ky.)   171;  but  compare,  Barrow  v.  Cranch.    (U.  S.)    51,  it  was  said   in 

Rhinelander,  1  Johns.   Ch.    (N.  Y.)  general    terms   that   if   the    answer 

550.  neither  admits  nor  denies  the  alle- 

^*As   on   applications   for   a   tem-  gations    in    the   bill,    they    must   be 

porary  injunction  or  the  like.  proved  at  the  hearing,  the  distinc- 

'5  3  Greenleaf  Ev.,  §  276.  tion    taken    in    the    text   not   being 

'"'  2  Daniell  Ch.   Pr.  977,  note   by  adverted  to,  as  the  case  did  not  call 

Perkins,     5th     (Am.)     ed..    Vol.     I.  for  it. 

Thorington     v.     Carson,     1     Port.  •'*  McCambell     v.     Gill,     4     J.     J. 

(Ala.)    257;    Kirkman  v.  Vanlier,  7  Marsh.    (Ky.)   87;  Atwood  v.  Harri- 

Ala.    217;    Ball   v.    Townsend,    Litt.  son,  5  J.  J.  Marsh.   (Ky.)   329;  Hig- 

Sel.  Cas.  (Ky.)  325;  Mosely  v.  Gar-  gins  v.   Conner,   3   Dana    (Ky.)    1; 


529 


ANSWER  AS   EVIDENCE. 


[§  3198. 


the  plaintiff  reads  the  defendant's  answer  in  evidence  against  the  de- 
fendant, the  plaintiff  may  also  read  so  much  of  the  bill  as  is  necessary 
to  explain  the  answer.^^  But,  as  observed  by  Mr.  Daniell,  in  strict- 
ness this  can  hardly  be  called  reading  the  bill  in  evidence  on  the  part 
of  the  plaintiff. 

§  3198.  Answer  as  evidence  for  defendant. — It  is  the  general  rule 
that  the  sworn  answer  of  a  defendant  in  equity,  so  far  as  it  is  re- 
sponsive to  the  bill  and  when  called  for  therein,  is  evidence  for  him, 
and  is  usually  conclusive,  unless  contradicted  by  two  witnesses,  or 
one  witness  corroborated  more  or  less  strongly  by  circumstances, 
according  to  the  nature  of  the  case.*"    It  is  also  sometimes  stated 


Jones  v.  Person,  2  Hawks  (N.  Car.) 
269.  "In  these  cases,  however,  if 
there  is  no  general  order  on  the 
subject,  it  is  usual  to  make  a  spe- 
cial order,  that  unless  an  answer  is 
made  within  a  certain  time,  the  bill 
will  be  taken  pro  confesso."  See, 
Cory  v.  Gertcken,  2  Madd.  40;  1 
Daniell  Ch.  Pr.  569-577,  5th  Am. 
ed.  518-525;  1  Hoffman  Ch.  Pr., 
chap.  6,  pp.  184-190;  1  Daniell  Ch. 
Pr.   (6th  ed.)  531,  838. 

"M'Gowen  v.  Young,  2  Stew.  & 
P.  (Ala.)  160,  176;  1  Daniell  Ch. 
Pr.  (6th  ed.)  838;  see  also,  Lancas- 
ter V.  Arendell,  2  Heisk.  (Tenn.) 
434;  Grimes  v.  Hilliary,  51  HI.  App. 
641;  Walsh  v.  Agnew,  12  Mo.  520. 

«°McGary  v.  McDarmott,  207  Pa. 
St.  620,  57  Atl.  46;  Campbell  v.  Pat- 
terson, 95  Pa.  St.  447;  Nulton's  Ap- 
peal, 103  Pa.  St.  286;  Rowley's 
Appeal,  115  Pa.  St.  150.  9  Atl.  329; 
Gleghorne  v.  Gleghorne,  118  Pa.  St. 
383,  11  Atl.  797;  Mason  v.  Smith, 
200  Pa.  St.  270,  49  Atl.  642;  Ring- 
gold V.  Bryan,  3  Md.  Ch.  488; 
United  States  Bank  v.  Beverly,  1 
How.  (U.  S.)  134;  Carpenter  v. 
Providence  &c.  Ins.  Co.,  4  How.  (U. 
S.)  185;  Vigel  v.  Hopp,  104  U.  S. 
441;  Morrison  v.  Durr.  122  U.  S.  518, 
7  Sup.  Ct.  1215;  West  v.  Flannagan, 


4  Md.  36;  Brooks  v.  Thomas,  8  Md. 
367;  Miles  v.  Miles,  32  N.  H.  147; 
Busby  V.  Littlefield,  33  N.  H.  76; 
Williams  v.  Philpot,  19  Ga.  567; 
Autrey  v.  Cannon,  11  Tex.  110; 
Calkins  v.  Evans,  5  Ind.  441;  Tur- 
ner V.  Knell,  24  Md.  55;  Clark  v. 
Hackett,  1  Cliff.  (U.  S.)  269;  Hay- 
ward  V.  Eliot  &c.  Bank,  4  Cliff.  (U. 
S.)  294;  Slessinger  v.  Buckingham, 
8  Sawy.  (U.  S.)  569;  Delano  v. 
Winsor,  1  Cliff.  (U.  S.)  501;  Bird 
V.  Styles,  3  C.  E.  Green  (N.  J.) 
297;  Morris  v.  White,  36  N.  J.  Eq. 
324;  Frink  v.  Adams,  36  N.  J.  Eq. 
485;  Fulton  v.  Woodman,  54  Mass. 
158;  Johnson  v.  Crippen,  62  Miss. 
597;  O'Brian  v.  Fry,  82  111.  274; 
Hurd  V.  Ascherman,  117  111.  501, 
6  N.  E.  160;  Croarkin  v.  Hutchin- 
son, 187  111.  633,  58  N.  E.  678; 
Heeren  v.  Kitson,  28  111.  App.  259; 
Rick  V.  Neitzy,  1  Mackey  (D.  C.) 
21;  Coldiron  v.  Asheville  &c.  Co.,  93 
Va.  364,  25  S.  E.  238;  Thompson  v. 
Clark,  81  Va.  422;  Cummins  v. 
Cummins,  15  111.  33;  Reid  v.  Mc- 
Callister,  49  Fed.  16;  Pinney  v. 
Pinney,  (Fla.)  35  So.  95;  but  this 
rule  is  abrogated  or  modified  in 
some  jurisdictions,  especially  in 
many  of  the  code  states. 


Vol.  4  Elliott  Ev. — 34 


§    3198.]  PROCEEDINGS    IX    EQUITY.  530 

that  the  corroborating  circumstances  must  be  equivalent  to  the  testi- 
mony of  a  second  witness.'^^  But  there  are  cases  in  which  it  is  held 
with  good  reason  that,  in  some  instances,  the  answer  may  be  over- 
come by  documentary  evidence,  or  admissions  or  even  circumstantial 
evidence. ^^  And  there  is  much  force  in  the  reasoning  of  the  Ver- 
mont court  upon  this  subject.  Thus,  in  one  case  it  is  said :  "The 
general  rule  in  equity  upon  this  subject,  as  has  often  been  declared, 
is  that  two  witnesses,  or  evidence  equal  to  that  of  two  witnesses, 
is  required  to  overcome  the  sworn  answer  of  the  defendant  re- 
sponsive to  the  bill.  Other  authorities  say  the  rule  requires  one 
witness  with  corroborating  circumstances.  The  rule  has  its  basis  in 
the  fact  that  the  answer  is  called  out  by  the  orator  for  his  own  use. 
If  it  admits  the  fact  charged  in  the  bill  to  be  true  the  orator  adopts 
this  admission  as  sufficient  proof  of  the  fact.  If  the  answer  denies 
the  fact  charged  the  orator  is  left  to  establish  it  by  other  means, 
if  he  can,  and  at  the  same  time  the  denial  is  evidence  for  the  de- 
fendant. .  .  .  But  the  rule  as  often  announced  respecting  the 
effect  of  the  answer  as  proof  is,  we  think,  misleading,  as  a  careful 
examination  of  the  authorities  will  show.  The  weight  of  evidence 
does  not  depend  upon  the  number  of  witnesses  that  depose  to  give 
facts.  The  burden  of  proof,  when  an  answer  is  responsive  to  the  bill, 
devolves  upon  the  orator  to  satisfy  the  trier  that  such  answer  is 
untrue;  but  this  burden  may  sometimes  be  discharged  by  documentary 
proof  or  circumstantial  evidence  without  the  deposition  of  any  wit- 
ness testifying  to  the  facts  set  out  in  the  bill.  It  is  obvious  that 
a  sworn  answer  responsive  to  the  bill  stands  as  the  deposition  of  one 
witness,  and,  if  encountered  by  one  witness  testifying  in  contradic- 
tion, and  no  circumstances  appear  affecting  the  case,  no  preponder- 
ance of  proof  is  made  out  on  either  side,  and  the  orator  must  fail 

^^See,    Croarkin    v.     Hutchinson,  v.  Latta,  5  Mackey   (D.  C.)   304,  60 

187  111.  633,  58  N.  E.  678;  Galbraith  Am.  R.  373;    Jones  v.  Abraham,  75 

V.  Galbraith,  190  Pa.  St.  225,  42  Atl.  Va.    466;    Parker   v.    Phetteplace,    2 

683;    Slessinger    v.    Buckingham,    8  Cliff.  (U.  S.)  70,  affirmed  in  1  Vv'^all. 

Sawy.   (U.  S.)   469;    Stephens  v.  Or-  (U.  S.)    684;    Garrett  v.  Garrett,  29 

man,  10  Fla.  9;   Morrison  v.  Durr,  Ala.  439;  Gillett  v.  Robbins,  12  Wis. 

122    U.    S.    518,    7    Sup.    Ct.    1215;  319.     Where,    in    addition    to    testi- 

Evans  v.  Evans,  (N.  J.  Eq.)  59  Atl.  mony  against  a  responsive  answer, 

564.  there     are     corroborative     circum- 

*^  Field    V.    Wilbur,    49    Vt.    157;  stances  in  evidence,  a  decree  for  the 

Robinson    v.    Hardin,    26    Ga.    344;  plaintiff  may  be  sustained.    Gunda- 

White  V.  Crew,  16  Ga.  416;  Jones  v.  ker  v.  Ehrgott,   209  Pa.  St.   284,  58 

Belt,    2    Gill    (Md.)    106;    Kilbourn  Atl.  476. 


531  LIMITATIONS  OF  ANSWER  AS  EVIDENCE.  [§    3199. 

because  the  burden  of  proof  is  upon  him.  But  tlio  answer  considered 
as  evidence  is  to  be  weighed  precisely  as  it  would  be  if  it  appeared 
in  a  deposition  disconnected  from  the  defendant's  pleading;  and 
the  fact  that  the  defendant  is  interested  in  the  event  of  the  suit 
has  the  same  effect  in  discrediting  his  story  that  it  does  in  an  ordi- 
nary case  of  law.  Again,  if  the  answer  is  evasive  or  equivocating, 
it  lessens  its  force  as  evidence  precisely  as  such  circumstances  impair 
the  story  of  a  witness  told  on  the  witness  stand.  In  short,  the 
answer,  when  used  as  evidence,  is  subject  to  the  same  proper  criti- 
cism and  the  same  legal  infirmities  that  attach  to  all  evidence  in 
whatsoever  form  it  is  introduced  in  court.  All  that  the  orator  is 
bound  to  do  is  to  meet  and  overcome  the  answer  by  competent  proof. 
This  proof  may  require  one  or  twenty  witnesses;  it  may  be  made 
without  any."*^ 

§  3199.  Answer  as  evidence  for  defendant — ^Limitations  and  ex- 
ceptions.— There  are  certain  limitations  or  exceptions  to  the  general 
rule  in  equity  making  the  answer  of  the  defendant  evidence  for 
himself,  which  will  be  considered  in  this  and  the  following  sections. 
It  is  the  prevailing  doctrine  in  the  United  States  that  the  rule  is 
not  applicable  to  an  unsworn  answer,  no  matter  whether  an  answer 
under  oath  is  required  by  the  bill  or  not,  the  rule  apparently  being 
otherwise  in  England.®*  So,  in  most  jurisdictions,  if  an  answer 
under  oath  is  expressly  waived  in  the  bill  an  answer  that  is  sworn 
to  cannot  be  used  by  the  defendant  as  evidence  in  his  favor  any 
more  than  an  unsworn  answer.®^    It  has  even  been  said  that  if  not 

'^Veile  V.  Blodgett,  49  Vt.  270,  son  v.  Towle,  36  N.  H.  129;  Willen- 
277;  see  also,  Deimel  v.  Brown,  Ibti  borg  v.  Murphy,  36  111.  344;  Good- 
Ill.  586,  27  N.  B.  44;  McLane  v.  win  v.  Bishop,  145  111.  421,  34  N.  E. 
Johnson,  59  Vt.  237,  9  Atl.  837;  47;  Hyer  v.  Little,  20  N.  J.  Eq.  443; 
Field  V.  Wilbur,  49  Vt.  157;  White  Craft  v.  Sahlag,  61  N.  J.  Eq.  567, 
V.  Crew,  16  Ga.  416.  49   Atl.   431;    Story   Eq.   PI.,    §    875, 

^*  Union  Bank  v.  Geary,  5  Pet.  (U.  et  seq. 

S.)  99;  Patterson  v.  Gaines,  6  How.  ^Treadwell    v.    Lennig,    50    Fed. 

(U.  S.)  550,  586;  Bartlett  v.  Gale,  4  872;    Clay   v.    Towle,    78    Me.    86,    2 

Paige    (N.  Y.)    503;    Willis  v.   Hen-  Atl.    852;    Peter   v.    Wright,    6    Ind. 

derson,   4    Scamm.    (111.)    13;    Peck  183;    Bickerdike    v.    Allen,    157    111. 

V.  Hunter,  7  Ind.  295;  Tomlinson  v.  95,  41  N.  E.  740,  29   L.  R.  A.  782; 

Lindley,     2     Ind.     569;      Smith     v.  Morrison   v.    Hardin,    81    Miss.    583, 

Phelps,    32    Iowa    537;     McLard    v.  33   So.   80;    see  also.   Sweet  v.   Par- 

Linnville,  10  Humph.    (Tenn.)   163;  ker.  22  N.  J.  Eq.  453;  Ayer  v.  Messef, 

Taggart  v.  Boldin,  10  Md.  104;  Wil-  59   N.   H.   279;    Miller   v.   Avery.   2 


§  3199.]  PROCEEDIXGS  IX  EQUITY.  532 

called  for  under  oath  it  is  not  evidence  of  the  facts  therein  stated.^® 
But  this  seems  to  be  a  loose  or  incorrect  way  of  stating  the  limita- 
tions, at  least  as  it  exists  in  most  jurisdictions.  As  said  in  a  recent 
case  by  the  Supreme  Court  of  the  United  States:  "The  bill  neither 
required  nor  waived  an  answer  under  oath,  but  the  defendant  an- 
swered under  oath,  traversing  all  the  averments  of  the  bill,  upon 
which  the  prayer  for  relief  was  based.  The  answer,  though  not  called 
for  under  oath,  is  evidence  on  behalf  of  the  defendant.  For,  if  a 
plaintiff  in  equity  is  unwilling  that  the  answer  should  be  evidence 
against  him,  he  must  expressly  waive  the  oath  of  the  defendant  in 
his  bill.  .  .  .  If  he  fails  to  do  this,  the  answer  must  be  given 
under  oath  and  is  evidence."^^  There  are  also  other  limitations. 
In  order  to  enable  the  defendant  to  claim  the  benefit  of  the  general 
rule,  the  facts  stated  in  the  answer  must  be  responsive  to  the  allega- 
tions and  interrogatories  of  the  bill,  and  the  answer  must  be  positive 
and  distinct,  and  not  evasive  and  illusory.*^  So,  where  the  facts 
stated  or  denied  in  the  answer  could  not  possibly  be  within  the 
personal  knowledge  of  the  defendant,  as  sometimes  happens  in 
the  case  of  an  executor  or  heir,  or  the  like  or  where  they  are  stated 
or  denied  only  upon  information  and  belief,  or  by  way  of  inference 
from  facts  not  particularly  stated,  the  same  amount  of  counter- 
Barb.  Ch.  (N.  Y.)  582;  Bingham  v.  Cole  v.  Shetterly,  13  111.  App.  420; 
Yeomans,  10  Cush.  (Mass.)  58;  Stouffer  v.  Machen,  16  111.  553; 
Watts  V.  Eufaula  Nat.  Bank,  76  Wakeman  v.  Grover,  4  Paige  (N.  Y.) 
Ala.  474.  At  least  it  has  no  more  23;  Lucas  v.  Bank  of  Darien,  ^ 
probative  force  than  an  affidavit.  Stew.  (Ala.)  280;  Kellogg  v.  Singer 
United  States  v.  Workingmen's  &c.  &c.  Co.,  35  Fla.  99,  17  So.  68;  New 
Council,  54  Fed.  994;  see  and  com-  England  Bank  v.  Lewis,  8  Pick, 
pare,  Vanderzer  v.  McMillan,  28  Ga.  (Mass.)  113;  Phillips  v.  Richardson, 
339;  Armstrong  v.  Scott,  3  Greene  4  J.  J.  Marsh.  (Ky.)  213;  Sallee  v. 
(Iowa)  433;  Jones  v,  Abraham,  75  Duncan,  7  T.  B.  Mon.  (Ky.)  382; 
Va.  466,  where  there  is  no  such  rule  Cocke  v.  Trotter,  10  Yerg.  (Tenn.) 
as  to  waiving  an  answer  under  212;  O'Brien  v.  Elliot,  15  Me.  125; 
oath.  Buck  v.  Swazey,  35  Me.  41;  Smith  v. 

^''See,  Mankey  v.  Willoughby,  21  Kincaid,  10  Humph.  (Tenn.)  73; 
D.  C.  (App.)  314;  Clay  v.  Towle,  78  Jacks  v.  Nichols,  1  Seld.  (N.  Y.) 
Me.  86,  2  Atl.  852.  178;  Stevens  v.  Post,  1  Beas.  Eq.  (N. 

"Conly  V.  Nailer,  118  U.  S.  127,  6  J.)  408;  Coleman  v.  Ross,  46  Pa. 
Sup.  Ct.  1001;  see  also,  Jacobs  v.  St.  180,  184;  Wells  v.  Houston,  37 
Van  Sickle,  61  C.  C.  A.  598,  127  Fed.  Vt.  245;  Veile  v.  Blodgett,  49  Vt. 
62;  Kahn  V.  Weinlander,  39  Fla.  210,  270;  Roach  v.  Sum-mers,  20  WalL 
2z  So.  653,  655.  (U.    S.)    165;    Seitz   v.   Mitchell,    94 

^Barton  v.  Barton,   75  Ala.  400;     U.  S.  580. 


533 


LIMITATIONS    OF    ANSWER    AS    EVIDENCE. 


[§    3199, 


vailing  proof  to  overcome  the  answer  is  not  required.'"'  Thus,  the 
answer  of  a  defendant  formally  denying  that  which  he  is  not  alleged 
to  know,  and  which  from  his  situation  he  could  not  know,  has  been 
held  not  to  be  conclusive  as  to  require  more  than  one  witness  on  the 
part  of  the  complainant  to  establish  what  is  thus  denied. ''°  So, 
where  the  defendant  only  answers  on  information  and  belief,  a 
single  witness  on  the  part  of  the  complainant  may  be  sufficient  to 
establish  the  fact;^^  and  the  same  is  held  where  the  answer  con- 
tains no  positive  denial  of  material  facts  distinctly  and  positively 
alleged  and  charged  in  the  bill.^-    And  so,  a  denial  in  an  answer 


*' Combs  v.  Boswell,  1  Dana  (Ky.) 
474;  Lawrence  v.  Lawrence,  4  Bibb. 
(Ky.)  357;  Harlan  v.  Wingate,  2  J. 
J.  Marsh.  (Ky.)  138;  Carneal's 
Heirs  v.  Day,  Litt.  Sel.  Cas.  (Ky.) 
492;  Knickerbacker  v.  Harris,  1 
Paige  (N.  Y.)  209;  Drury  v.  Con- 
ner, 6  H.  &  J.  (Md.)  288;  Penning- 
ton V.  Gittings,  2  Gill  &  J.  (Md.) 
208;  Fryrear  v.  Lawrence,  10  111. 
325;  Clarke  v.  Van  Riemsdyk,  9 
Cranch.  (U.  S.)  153;  Paulding  v. 
Watson,  21  Ala.  279;  Copeland  v. 
Crane,  9  Pick.  (Mass.)  73;  Snell  v. 
Fewell,  64  Miss.  655,  1  So.  908; 
Toulme  v.  Clark,  64  Miss.  471,  1  So. 
624;  Berry  v.  Sawyer,  19  Fed.  286; 
Holladay  Case,  The,  27  Fed.  830; 
Miller  v.  District  of  Columbia,  5 
Mackey  (D.  C.)  291;  Blair  v.  Silver 
Peak  Mines,  84  Fed.  737,  93  Fed. 
332;  Savings  &c.  Soc.  v.  Davidson, 
38  C.  C.  A.  365,  97  Fed.  696;  but  see, 
McGehee  v.  White,  31  Miss.  41. 

'"Lawrence  v.  Lawrence,  21  N.  J. 
Eq.  317;  Garrow  v.  Carpenter,  1 
Port.  (Ala.)  359;  Reynolds  v.  Pharr, 
9  Ala.  560;  Combs  v.  Tarlton,  2  Dana 
(Ky.)  464;  Lawrence  v.  Lawrence, 
4  Bibb.  (Ky.)  357;  Watson  v.  Pal- 
mer, 5  Ark.  501,  506;  Biscoe  v.  Coul- 
ter, 18  Ark.  423;  Loomis  v.  Fay,  24 
Vt.  240;  Clarke  v.  Van  Riemsdyk,  9 
Cranch.  (U.  S.)  153.  These  and  sim- 
ilar answers  generally  have  little,  if 
any,  effect  except  to  put  the  case  at 


issue  and  require  the  complainant 
to  prove  his  case.  See,  Young  v. 
Hopkins,  6  T.  B.  Mon.  (Ky.)  18; 
Harlan  v.  Wingate,  2  J.  J.  Marsh. 
(Ky.)  138;  Brown  v.  Pierce,  7  Wall. 
(U.  S.)  205,  211,  212;  Drury  v.  Con- 
ner, 6  H.  &  J.  (Md.)  288;  Paulding 
V.  Watson,  21  Ala.  279;  Williamson 
V.  McConnell,  4  Dana  (Ky.)  454. 

"'  Deimel  v.  Brown,  136  111.  586,  27 
N.  E.  44;  Knickerbacker  v.  Harris, 
1  Paige  (N.  Y.)  210;  Town  v.  Need- 
ham,  3  Paige  (N.  Y.)  546;  Hanchett 
V.  Blair,  41  C.  C.  A.  76,  100  Fed.  817; 
Allen  V.  O'Donald,  28  Fed.  17;  Wat- 
son V.  Palmer,  5  Ark.  501;  McKis- 
sick  V.  Martin,  12  Heisk.  (Tenn.) 
311;  Wilkins  v.  May,  3  Head 
(Tenn.)  173;  Atlantic  &c.  Ins.  Co.  v. 
Wilson,  5  R.  I.  479;  McGuffie  v. 
Planters'  Bank,  Freem.  (Miss.)  383; 
Toulme  v.  Clark,  64  Miss.  471,  1  So. 
624;  L(Jomis  v.  Fay,  24  Vt.  240; 
Copeland  v.  Crane,  9  Pick.  (Mass.) 
73;  New  Brunswick  &c.  Co.  v.  Eden, 
62  N.  J.  Eq.  542,  50  Atl.  606;  Gantt 
V.  Cox  &c.  Co.,  199  Pa.  St.  208,  48 
Atl.  992. 

"-  Benson  v.  Woolverton,  15  N.  J. 
Eq.  158:  Rhea  v.  Allison,  3  Head 
(Tenn.)  176,  179;  Farnam  v.  Brooks, 
9  Pick.  (Mass.)  212;  Morse  v.  Hill, 
136  Mass.  60;  Le  Neve  v.  Le  Neve,  1 
Ves.  64.  66;  Barraque  v.  Siter,  9 
Ark.  545;  Toulme  v.  Clarke,  64  Miss. 
471.  1  So.  624. 


§§  3200,  3201.]      PROCEEDIXGS  IN  EQUITY. 


534 


is  of  no  avail  as  against  a  matter  conclusively  presumed  by  a  rule 
of  law/^  and  it  must  be  to  some  fact  rather  than  a  mere  inference 
of  law.** 

§  3200.  Answer  as  evidence  for  defendant — Rule  where  complain- 
ant does  not  reply — Hearing  on  bill  and  answer. — Several  of  the  limi- 
tations or  exceptions  considered  in  the  above  section  are  only  applicable 
where  the  complainant  has  put  in  a  replication,  and  taken  issue 
upon  the  allegations  of  the  answer.  Wliere  he  does  not  do  so,  but 
sets  the  case  down  for  hearing  on  bill  and  answer,  he  so  far  waives 
his  rights,  and  the  answer  so  far  as  well  pleaded  is  to  be  taken  as 
true  whether  responsive  or  not.^"  He,  in  effect,  submits  the  cause 
on  the  contention  that  he  is  entitled  to  a  decree  as  prayed  for  in  his 
bill,  notwithstanding  the  denials  and  matters  stated  in  the  answer, 
as,  for  instance,  upon  the  admission  also  contained  in  the  answer. 

§3201.  Responsive  answers — Illustrative  cases. — As  already 
stated  where  the  hearing  is  upon  the  bill,  answer  and  replication,  in 
order  to  have  the  peculiar  efPect  given  to  an  answer  in  equity  the  an- 
swer must  be  responsive.  Thus,  in  a  recent  case,  it  is  held  that  an  an- 
swer in  equity,  although  under  oath,  is  not  evidence  for  defendant, 
in  so  far  as  it  sets  up  new  facts  by  way  of  avoidance  of  the  matters 
averred  in  the  bill,  and  that  such  allegations  must  be  proved  by 

^=  Smallwood  v.  Lewin,  15  N.  J.  Eq.  nolds,    (Md.)    59  Atl.   669;    Ware  v. 

60;   Adams  v.  Adams,  21  Wall.    (U.  Richardson,    3    Md.    505;    Mason    v. 

S.)   185;   Commercial  &c.  Ins.  Co.  v.  Martin,  4  Md.  124;   Barton  v.  Balti- 

Union   Mut.   Ins.   Co.,  19  How.    (U.  more  &c.  Alliance,  85  Md.  14,  36  Atl. 

S.)  318,  319.  658;    Perkins   v.    Nichols,    11    Allen 

^Gainer  V.  Russ,  20  Fla.  157;  Rob-  (Mass.)    542;   Farrell  v.  McKee,   36 

inson  v.  Cathcart,  2  Cranch.  (U.  S.)  111.  225;  Roach  v.  Glos,  181  111.  440, 

590.  54  N.  E.  1022;  Eversole  v.  Maull,  50 

*«  Reese  v.  Barker,  85  Ala.  474,  5  Md.    95;    Philadelphia's   Appeal,    78 

So.  305;  Cherry  v.  Belcher,  5  Stew.  Pa.  St.   33;   United  States  v.  Scott, 

&  P.    (Ala.)   133;    Peirce  v.  West,  1  3   Woods    (U.    S.)    334;    McCully  v. 

Pet.  (U.  S.)  351;  Dale  v.  McEvers,  2  Peel,   42  N.   J.   Eq.   493;    Bowers  v. 

Cow.  (N.  Y.)  118;  Jones  v.  Mason,  5  McGavock,    (Tenn.)    85   S.   W.   893; 

Rand.  (Va.)  577;  Bierne  v.  Ray,  37  Parker    v.    Concord,    39    Fed.    718; 

W.  Va.  571,  16  S.  E.  804;    Scott  v.  Lake  Erie  &c.  R.  Co.  v.  Indianapolis 

Clarkson,  1  Bibb   (Ky.)   277;   Moore  &c.  Bank,  65  Fed.  690;  but  see.  Van 

V.  Hyltori,  1  Dev.  Eq.  (N.  Car.)  429;  Dyke  v.  Van  Dyke,  26  N.  J.  Eq.  180; 

Huyck  V.  Bailey,  100  Mich.  223,  58  N.  Taunton   v.    Taylor,    116   Mass.   254. 

W.  1002;  Carman  v.  Watson,  1  How.  The   rule   is  changed  by  statute  in 

(Miss.)    333;    Lanning  v.    Smith,   1  some  states. 
Pars.  Eq.  (Pa.)  13,  17;  Read  v.  Rey- 


535  EESPOXSIVE  ANSWERS.  [§   3201. 

other  evidence.^^  This  is  the  general  rule  in  regard  to  new  matter 
pleaded  as  a  defense  in  avoidance."  But,  although  affirmative  in 
form  and  in  a  sense  in  avoidance  it  may,  perhaps,  be  responsive  to 
the  bill,  and  there  are  some  cases  in  which  such  an  answer  has  been 
held  to  be  evidence  for  the  defendant.^^  In  one  case  the  complainant 
in  his  bill  against  a  corporation  and  its  stockholders  seeking  to  en- 
force his  rights  as  a  stockholder,  alleged  that  he  was  an  original 
subscriber  for  stock,  that  the  defendants  refused  to  give  him  a  cer- 
tificate and  confederated  to  deprive  him  of  his  rights  as  a  stock- 
holder. The  answer  admitted  the  act  of  subscribing,  but  alleged  that 
it  was  accompanied  by  an  agreement  that  it  was  wholly  for  the  use 
of  the  defendant  stockholders,  and  the  court  held  that  this  was  not 
subsequent  matter  in  avoidance,  but  a  material  portion  of  the  facts 
in  the  case,  and  responsive  to  the  bill.^''  The  same  court  has  also 
held  an  answer  responsive  to  a  bill  by  a  wife  against  her  husband 
to  recover  a  sum  of  money  alleged  to  have  been  paid  by  her  in  build- 
ing and  furnishing  their  house,  and  for  which  the  defendant  had 
given  her  no  security,  where  such  answer  alleged  that  the  money 
had  been  given  him  by  the  complainant,  and  that  there  was  no 
agreement,  contract  or  understanding  that  he  was  to  repay  or  in  any 
way  secure  the  money."''  Where  a  bill  to  set  aside  a  decree  and  re- 
cover property  alleged  that  the  decree  was  obtained  by  fraud  and  col- 
lusion, and  the  pleas  and  answers  under  oath  denied  the  fraud  and 
collusion  charged,  and  averred  a  purchase  of  the  property  in  good 
faith  for  valuable  consideration,  such  averments  were  held  responsive 

«« Pennsylvania    Co.    v.    Cole,    132  Cloud  v.  Calhoun,  10  Rich.  Eq.    (S. 

Fed.  668.  Car.)    358;    Lewis  v.  Mason,  84  Va. 

"Goodloe  V.  Dean,  81  Ala.  479,  8  731,  10  S.  B.  529;  Humes  v.  Scruggs, 

So.  197;  Craft  v.  Russell,  67  Ala.  9;  94  U.  S.  22;    Clements  v.  Moore,   6 

Robinson    v.    Jefferson,    1    Del.    Ch.  Wall.    (U.  S.)    299;    Bates  Fed.   Eq. 

244;     Dexter    v.    Gordon,    11    D.    C.  Proc,  §  324;  Mitford  &  Tyler  PL  & 

(App.)     60;    Orman    v.    Barnard,    5  Pr.  in  Eq.  461. 

Fla.  528;   Walton  v.  Walton,  70  111.  ''See,  Stillwell  v.  Badgett,  22  Ark. 

142;    Peck   v.    Hunter,    7    Ind.    295;  164;    Smith  v.  Atwood,  14  Ga.  402; 

White    V.    Hampton,    10    Iowa    238;  Bellows  v.  Stone,  18  N.  H.  465;  but 

Taylor   v.    Morton,    5    J.    J.    Marsh,  compare,  Beecu  v.  Haynes,  1  Tenn. 

(Ky.)  65;  O'Brien  v.  Elliott,  15  Me.  Ch.  569. 

125,  32  Am.  Dec.  137;  Smoot  v.  Rea,  ""Rowley's  Appeal,  115  Pa.  St.  150, 

19    Md.   398;    Dyer   v.   Williams,   62  9  Atl.  329. 

Miss.  302;   Ingersoll  v.  Stiger,  46  N.  i""  Gleghorne  v.  Gleghorne,  118  Pa. 

J.  Eq.  511,  19  Atl.  842;  Hart  v.  Ten  St.  383.  11  Atl.  797;    see  also,  Reid 

Eyck,    2    Johns.    Ch.    (N.    Y.)    62;  v.  McCallister,  49  Fed.  16. 


§  3203.]  PROCEEDINGS  IN  EQUITY.  53G 

to  the  allegations  of  the  bill.^°^  Again,  where  a  bill  filed  to  redeem 
stock  alleged  that  it  had  been  pledged  for  five  hundred  dollars,  and 
the  answer  stated  that  it  was  pledged  for  eight  hundred  dollars  in 
addition  thereto,  this  was  held  to  be  responsive."^  So,  where  a  bill 
was  filed  to  subject  stocks  of  an  estate  to  the  payment  of  a  debt 
for  which  they  were  held  as  collateral  security,  and  the  answer  by 
one  of  the  executors  admitted  that  the  money  was  borrowed  from  the 
plaintiff  and  the  security  given  as  alleged  in  the  bill,  but  averred 
that  the  loan  was  made  to  the  business  firm  of  which  the  executor 
was  a  member  and  that  the  stock  pledged  by  the  executor  as  security 
then  belonged  to  the  estate  and  that  these  facts  were  known  to  the 
plaintiff,  it  was  held  that  the  answer  was  responsive  to  the  bill."^ 
And  in  a  number  of  other  cases  where  the  admission  and  avoidance 
were  in  regard  to  one  single  fact  or  transaction  and  were  necessary 
to  be  taken  together  in  order  to  understand  it  and  give  it  the  true 
effect,  the  answer  has  been  held  evidence  of  both."*  So,  in  a  recent 
case  it  is  held  that  unless  a  bill  expressly  waives  an  answer  under  oath, 
it  must  be  so  made,  and,  when  responsive  to  the  bill,  it  is  evidence 
for  the  defendant,  which  can  only  be  overcome  by  witnesses,  or  its 
equivalent;  and  the  allegations  of  a  bill  charging  fraud  cannot  be 
considered  proved  where  they  are  specifically  denied  by  answers  under 
oath,  and  the  only  testimony  introduced  by  complainant  is  that  of 
the  defendants,  which  supports  the  averments  of  the  answers. ^"^ 
Where  judgment  creditors  sought  to  set  aside  an  execution  sale  on 
the  ground  of  fraud  in  the  judgment,  and  the  bill  called  for  an  an- 
swer under  oath,  an  answer  denying  every  allegation  of  fraud  was 
held  responsive.^°^ 

§  3202.  Answers  not  responsive. — In  a  recent  case  an  answer  to  a 
bill  seeking  to  have  a  tax  claim  canceled,  was  held  so  evasive  and 
irresponsive  that  it  did  not  even  put  the  plaintiff  to  proof  of  the 

^"iBeals  v.  Illinois  &c.  R.  Co.,  133  Ivierritt  v.  Brown,  19  N.  J.  Eq.  286; 

U.  S.  290,  10  Sup.  Ct.  314.  Appeal  of  Rowley,  115  Pa.  St.  150, 

"-Dunham    v.    Jackson,    6    Wend.  9  Atl.  329;  see  also.  Maxwell  v.  Jack- 

(N.  Y.)    22;    reviewed   in,    Schwarz  sonville  Loan  &c.  Co.,   (Fla.)  34  So. 

V.  Wendell,  1  Walk.  (Mich.)  267.  255. 

"^Bell  V.  Farmers'  &c.  Bank,  131  ^"^  Jacobs  v.  Van  Sickle,  61  C.  C. 

Pa.  St.  318,  18  Atl.  1079.  A.   598,   127   Fed.    62,   affirming   123 


"^Cooper  V.  Tappan,  9  Wis.  333 
Pickering  v.  Day,  2  Del.  Ch.  333 
Day  v.  Jones,  40  Fla.  443,  25  So.  275 


Fed.  340. 

"''Morrison  v.  Durr,  122  U.  S.  518, 
7  Sup  Ct.  1215. 


537  ANSWER WHEN    RESPONSIVE.  [§    3232.- 

allegations  of  his  bill.^"  In  another  case,  which  was  a  suit  between 
partners  for  an  accounting,  it  was  held  that  an  allegation  of  the 
answer  that  a  third  party  was  a  joint  partner  with  the  complainant 
and  defendant  and  a  necessary  party  to  the  suit,  was  not  responsive, 
and  that  it  could  not  be  assumed  to  be  true  at  the  hearing  upon  ex- 
ceptions to  the  answer.^"®  So,  an  averment  in  an  answer  to  a  bill 
for  specific  performance  that  the  contract  was  conditional  on  its 
being  approved  by  the  defendant's  wife,  no  such  condition  being  in 
the  writing  sued  on,  was  held  not  to  be  responsive  to  the  bill  and 
capable  of  being  proved  only  by  evidence  independent  of  the  an- 
swer.^°®  In  a  suit  to  restrain  the  collection  of  a  judgment  on  the 
ground  that  it  was  recovered  on  a  prior  judgment  on  a  note  which 
the  judgment  creditor  held  as  collateral  security,  where  the  bill 
also  alleged  that  the  debt  for  which  the  note  was  collateral  had  been 
paid  and  discharged,  an  allegation  in  the  answer  denying  defendant's 
knowledge  of  any  defense  to  the  collateral  note  was  held  not  re- 
sponsive to  the  bill."°  In  a  suit  by  a  creditor  for  an  account  of  a 
deceased  husband's  estate,  and  for  payment  of  plaintiff's  debt,  the 
wife,  who  was  also  administratrix,  answered  that  a  certain  bond 
executed  by  her  father  to  the  husband  had  been  assigned  to  her  by 
a  post-nuptial  settlement  as  her  sole  and  separate  estate  in  pursu- 
ance of  an  agreement  made  at  the  time  of  the  execution  of  the  bond, 
but  it  was  held  that  this  was  not  responsive  to  any  allegation  in  the 
bill.^^^  So,  in  a  suit  to  foreclose  a  mortgage,  the  defendant  answered 
under  oath,  admitting  the  execution  of  the  mortgage,  but  alleging 
that  it  was  given  in  lieu  of  another  mortgage  that  the  complainant 
agreed  to  cancel  and  return  to  the  defendant,  which  he  failed  to  do, 
and  praying  that  he  be  compelled  to  so  cancel  and  return  it,  but  it 
was  held  that  such  alleged  agreement  was  new  matter  and  not  re- 
sponsive to  the  bill.^^^  An  answer  of  payment  has  also  been  held 
affirmative  new  matter  and  not  responsive  in  several  cases,^^^  but 
such  an  answer  has  been  held  responsive  in  other  cases.^^* 

"^  Applewhite     v.     Foxworth,     79  "-  Ingersoll  v.  Stiger,  48  N.  J.  Eq. 

Miss.  773,  31  So.  533.  511,  19  Atl.  842. 

ii^ Brewer  V.  Norcross,  17  N.  J.  Eq.  "'Ison    v.    Ison,    5    Rich.    Eq.    (S. 

219.  Car.)    15;    Adams  v.  Adams,  22  Vt. 

^"»Ives  V.  Hazard,  4   R.  I.   14,  67  50;    Hickman  v.  Painter,  11  W.  Va. 

Am.  Dec.  500.  386. 

""Harding    v.    Hawkins,    141    111.  "*  King    v.    Payan,    18    Ark.    583; 

572,  31  N.  E.  307,  33  Am.  St.  347.  Britt    v.    Bradshaw,    18    Ark.    530; 

"^  Lewis  v.  Mason,  84  Va.  731,  10  Grafton   Bank   v.   Doe.   19  Vt.    463; 

S.  E.  529.  Stevens  v.  Post,   12   X.   J.  Eq.   408;. 


§§  3203,  3204.]     proceedi>,^gs  in  equity. 


538 


§  3203.  Test  of  responsiveness. — There  seems  to  be  no  accurate 
and  invariable  test  for  determining  when  an  answer  is  responsive 
within  the  meaning  of  the  rule.  Each  case  necessarily  depends 
very  largely  upon  its  particular  features,  and,  as  will  be  seen  by  com- 
paring the  authorities  referred  to  in  the  last  two  preceding  sections, 
the  courts  have  in  some  instances  taken  different  views  in  different 
cases  that  cannot  well  be  distinguished  in  principle.  A  test  that 
has  been  suggested  is  furnished  by  ascertaining  whether  the  questions 
answered  would  be  proper  to  propound  to  a  witness;  whether  they 
would  be  relevant  and  such  as  the  witness  would  be  bound  to  answer, 
and  the  answers  competent  testimony.^^^  It  has  also  been  suggested 
that  if  the  whole  subject-matter  of  an  allegation  in  the  answer 
might  have  been  omitted,  such  allegation  is  not  responsive;  but  if 
its  omission  would  furnish  ground  of  exception  to  the  answer,  such 
allegation  is  responsive."^  As  already  shown,  the  form  of  the  allega- 
tion does  not  furnish  a  satisfactory  test  and  is  not  always  con- 
clusive. 

§  3204.     Answer  false  in  part — ^Incredible  answer. — The  maxim 

falsus  in  uno  falsus  in  omnibus  has  sometimes  been  applied  to  an- 
swers in  equity,  and  it  has  often  been  stated  in  general  terms  that 
when  an  answer  is  disproved  in  a  material  point  it  loses  its  weight 
as  evidence."^  Thus,  it  has  been  said  in  substance  that  where  the 
answer  is  contradicted  in  any  one  or  more  important  particulars 
by  two  witnesses  or  one  witness  and  corroborating  circumstances  it 
is  deprived  in  all  respects  of  the  weight  ordinarily  given  answers 
in  courts  of  equity,  for  "being  falsified  in  one  thing,  no  confidence 
can  be  placed  in  it  as  to  the  others  according  to  the  maxim  falsus  in 
uno,  falsus  in  omnibus.""^  But  that  maxim,  as  ordinarily  applied, 
does  not  absolutely  require,  but  merely  authorizes,  the  discrediting 
of  the  other  evidence  or  testimony  of  the  same  person,  and  the  cor- 
rectness of  the  alleged  rule  thus  broadly  stated,  under  all  circum- 
stances and  without  any  qualification,   admits  of  some  question."^ 

McCaw  v.  Blewit,  2  McCord  Eq.  (S.  Roundtree  v.  Gordon,  8  Mo.  19;  For- 

Car.)  90.  syth  v.  Clark,  3  Wend.  (N.  Y.)  637; 

"=  Dunham   v.   Gates,    1    Hoff.    Ch.  Countz  v.  Geiger,  1  Call   (Va.)  190; 

(N.  Y.)  185,  3  Greenleaf  Ev.,  §  285.  Fay  v.  Oatley,  6  Wis.  42. 

""  Bellows  V.  Stone,  18  N.  H.  465.  "'  Roundtree  v.  Gordon,  8  Mo,  19, 


"'  Prout  V.  Roberts,  32  Ala.  427 

Gunn    V.    Brantley,     21     Ala.  633 

Pharis  v.   Leachman,    20   Ala.  662 

Gamble    v.    Johnson,    9    Mo.  605 


25. 

"'  See,   Fant  v.   Miller,   17   Gratt. 
(Va.)  187. 


539  ANSWER    OF    CO-DEFEXDAXT.  [§§    3205,    3206. 

The  rule  in  regard  to  the  effect  of  responsive  answers,  liowever,  has 
been  said  to  apply  only  to  fair  answers,  not  to  those  which  upon 
their  face  are  incredible.^-'^  And  an  answer  may  contain  Avithin 
itself  such  matters  as  will  deprive  it  of  all  efficacy  as  evidence. ^^i 

§  3205.  Questioning  competency  and  impeaching  defendant  who 
answers  under  oath. — It  is  held  that  if  a  sworn  answer  is  called  for 
in  the  bill  the  plaintiff  thereby  makes  the  defendant  a  competent 
witness  as  to  matters  in  the  answer  responsive  to  the  bill,  or  waives 
objections  thereto,  and  that  the  answer  is  competent  as  to  such 
matters  even  though  the  defendant  would  not  be  a  competent  wit- 
ness.^22  So,  it  is  held  that  the  plaintiff  who  has  called  for  such 
an  answer  is  not  entitled  to  impeach  the  defendant  by  proof  of  bad 
character  for  the  purpose  of  weakening  the  effect  of  the  answer.^ -^ 
But  the  answer  may  be  weakened  either  by  its  own  contradictions, 
or  intrinsic  defects^^*  or  by  proper  extrinsic  evidence,  including  the 
testimony  of  the  defendant  on  the  hearing.^^^ 

§  3206.  Answer  of  co-defendant. — It  has  already  been  shown  that 
admissions  in  the  answer  of  a  defendant  may  be  used  against  him- 
self. But  it  is  the  general  rule  that  the  answer  of  one  defendant 
is  not  evidence  against  another  defendant,^^''  and  this  has  been  held 

^^ Stevens  v.    Post,    12    N.    J.    Eq.  2  Strob.  Eq.   (S.  Car.)   143;  but  see, 

408.  Miller   v.   Tollison,   Harper  Eq.    (S. 

^=1  Commercial  Bank  v.  Reckless,  5  Car.)  119. 

N.  J.  Eq.  650;  Brown  v.  Bulkley,  14  '^^  Baker  v.  Williamson,  4  Pa.  St. 

N.  J.  Eq.  294;   Dunham  v.  Gates,  1  456;    Crawford  v.   Kirksey,   50  Ala. 

Hoff.    Ch.    (N.    Y.)    185;    Morris   v,  590;    Dunham  v.  Gates,  1  Hoff.  Ch. 

White,   36  N.   J.  Eq.   324,   329;    Ho-  (N.  Y.)   185;   Stevens  v.  Post,  12  N. 

boken  Sav.  Bank  v.  Beckman,  33  N.  J.  Eq.  408;  Harris  v.  Collins,  75  Ga. 

J.  Eq.  53;   see  also.  Wheat  v.  Moss,  97;  Jones  v.  Belt,  2  Gill  (Md.)  106; 

16  Ark.   243;    Russell  v.   Russell,   4  Moore    v.    Hylton,    1    Dev.    Eq.    (N. 

Dana    (Ky.)    40;    Ellis  v.  Woods,  9  Car.)  429;  Brown  v.  Brown,  10  Yerg. 

Rich.  Eq.  (S.  Car.)  19;  Yost  v.  Hudi-  (Tenn.)  84. 

burg,  2  Lea  (Tenn.)  627.  ^^  Roberts  v.  Miles,  12  Mich.  297; 

'"  Saffold  v.  Home,  71  Miss.  762,  Spencer's    Appeal,    80    Pa.    St.    317. 

15    So.    639;    see   also,    Blaisdell   v.  But  some  cases  hold  that  the  answer 

Bowers,  40  Vt.  126.  is  conclusive  where  it  is  called  for 

"'Murray    v.    Johnson,     1     Head  by  a  pure  bill  of  discovery.    Thomp- 
(Tenn.)    353;   Brown  v.  Bulkley,  14  son  v.  Clark,  81  Va.  422;  Jackson  v. 
N.  J.  Eq.  294;    Butler  v.  Catling,  1  Hart,  11  Wend.  (N.  Y.)  343. 
Root     (Conn.)     310;     Chambers    v.  ^-»  Danner  Land  &c.  Co.  v.  Stone- 
Warren,  13  111.  318;  Clark  v.  Bailey,  wall  Ins.  Co.,  77  Ala.  184;  Whiting 


3206.] 


PROCEEDINGS    IN    EQUITY. 


540 


to  be  especially  true  where  the  defendant  whose  answer  it  is  souglit 
to  use  against  a  co-defendant  is  substantially  a  plaintiff.^"  It  ha& 
also  been  held  that  it  does  not  necessarily  make  any  difference  that 
one  defendant  is  the  agent  of  the  other.^^s  -q^^  the  answer  of  one 
defendant  may  be  used  as  evidence  against  other  defendants  claim- 
ing through  him/29  q^  where  the  defendants  are  either  legally  or 
fraudulently  combined  so  as  to  create  a  unity  of  interest  between 
them/^°  or,  in  general,  where  there  is  a  privity  of  estate  or  interest. 
So  it  has  been  held  that  where  one  partner,  in  a  joint  and  several 
answer  by  both,  makes  admissions  as  to  his  own  acts  in  regard  to 
the  business  of  the  firm,  and  the  other  defendant  states  his  belief 
that  such  admissions  are  true,  a  decree  may  be  made  against  both 
on  such  admissions.^3^  So,  generally  where  one  refers  to  and  adopts 
the  answer  of  the  other. ^'^  It  was  also  held  in  an  interpleader  suit 
where  it  appeared  by  the  answer  of  each  defendant  that  he  claimed 
the  fund  in  dispute  from  the  complainant,  that  no  other  evidence  of 


V.  Beebe,  12  Ark.  421;  Blakeney  v. 
Ferguson,  14  Ark.  640;  Stackpole  v. 
Hancock,  40  Fla.  362,  24  So.  914,  45 
L.  R.  A.  814;  Christie  v.  Bishop,  1 
Barb.  Ch.  (N.  Y.)  105;  Salmon  v. 
Smith,  58  Miss.  399;  Hanover  Nat. 
Bank  v.  Klein,  64  Miss.  141,  8  So. 
208;  Webb  v.  Pell,  3  Paige  (N.  Y.) 
368;  Leeds  v.  Marine  Ins.  Co.,  2 
Wheat.  (U.  S.)  380;  Clarke  v.  Van 
Riemsdyk,  9  Cranch  (U.  S.)  153; 
McKim  v.  Thompson,  1  Bland  (Md.) 
150,  160;  Kennedy  v.  Davenport,  13 
B.  Mon.  (Ky.)  167;  McElroy  v.  Lud- 
lum,  32  N.  J.  Eq.  828;  Savage  v.  Car- 
roil,  1  Ball  &  B.  548,  553;  Reese  v. 
Reese,  41  Md.  554;  Stewart  v.  Stone, 
3  Gill  &  J.  (Md.)  514;  Hay  ward  v. 
Carroll,  4  H.  &  J.  (Md.)  518,  520; 
Calwell  v.  Boyer,  8  Gill  &  J.  (Md.) 
136;  Harwood  v.  Jones,  10  Gill  &  J. 
(Md.)  404,  32  Am.  Dec.  180;  Jones 
V.  Hardesty,  10  Gill  &  J.  (Md.)  404; 
Glenn  v.  Grover,  3  Md.  212;  Wrottes- 
ley  V.  Blendish,  3  P.  Wms.  235; 
Leigh  V.  Ward,  2  Vent.  72. 

^^  Field  V.  Holland,  6  Cranch  (U. 
S.)  8. 

^-^  Leeds    v.    Marine    Ins.    Co.,    2 


Wheat.  (U.  S.)  380;  see  also,  Moore 
V.  Hubbard,  4  Ala.  187;  Chapin  v. 
Coleman,  11  Pick.  (Mass.)  331;  but 
compare,  Rust  v.  Mansfield,  25  111. 
336;  Mobley  v.  Dubuque  &c.  Co.,  11 
Iowa  71;  Clarke  v.  Van  Riemsdyk,  9 
Cranch  (U.  S.)  153. 

^^  Osborn  v.  United  States  Bank,  9 
Wheat.  (U.  S.)  738  Field  v.  Holland, 
6  Cranch.  (U.  S.)  8;  Jones  v.  Har- 
desty, 10  Gill  &  J.  (Md.)  404,  415; 
Emerson  v.  Atwater,  12  Mich.  314; 
iitch  v.  Stamps,  6  How.  (Miss.) 
487;  but  see,  Winn  v.  Albert,  2  Md. 
Ch.  169. 

^^0  Christie  v.  Bishop,  1  Barb.  Ch. 
(N.  Y.)  105;  Lockman  v.  Miller,  25 
Miss.  786,  22  So.  822;  Hickson  v. 
Bryan,  75  Ga.  392;  Townsend  Vi  Mc- 
intosh, 14  Ind.  -57;  Pensoneau  v. 
Pulliam,  47  111.  58. 

1^^  Judd  V.  Seaver,  8  Paige  (N.  Y.) 
548;  Bevans  v.  Sullivan,  4  Gill 
(Md.)  383,  391. 

'2-  Blakeney  v.  Ferguson,  14  Ark. 
640;  Chase  v.  Manhardt,  1  Bland 
(Md.)  333;  Dunham  v.  Gates,  3 
Barb.  Ch.  (N.  Y.)  196;  Anonymous,, 
1  P.  Wms.  301. 


541  PLEA  AS   EVIDENCE.  [§§    3207,    3208. 

such  fact  need  be  produced.^-^  And  it  has  been  stated  generally  tliat 
where  the  admissions  of  one  defendant  would  be  competent  against 
the  other,  the  answer  of  the  former  containing  such  admissions  is 
competent."*  So,  the  sworn  answer  of  one  defendant,  responsive 
to  the  bill,  has  been  held  to  be  evidence  in  favor  of  other  defendants 
against  the  plaintiff. ^^'^ 

§3207.  Answers  not  evidence  against  infants. — The  answers  of 
infants  by  their  guardians  are  pleadings  merely,  and  not  evidence, 
although  responsive  to  the  bill  and  sworn  to  by  their  guardian  ad 
litem  or  next  friend.^ ^°  The  allegations  of  the  bill  should  be  proved 
by  other  means  before  a  decree  should  be  entered  against  their  in- 
terests.^^^  It  has  even  been  said  that  the  admission  in  a  deceased 
heir's  answer  of  the  will  of  the  testator  has  been  held  not  to  be  bind- 
ing upon  the  infant  heir  who  has  succeeded  him,"^  and  there  are 
many  cases  in  which  it  has  been  held  that  the  answers  of  adult 
co-defendants  cannot  be  used  against  an  infant."* 

§  3208.  Plea  as  evidence. — At  the  hearing  upon  a  plea,  replica- 
tion, and  proofs,  no  fact  is  in  issue  except  the  matters  pleaded  by 
or  in  support  of  the  plea,  and  a  plea  which  avoids  the  discovery' 
prayed  for  is  no  evidence  in  the  defendant's  favor,  even  when  it  is 
under  oaLh  and  negatives  a  material  averment  in  the  bill.^*°  Thus, 
where  a  plea  is  filed  and  there  is  no  answer,  the  averments  of  the 

•^Balchen  v.   Crawford,  1   Sandf.  Sandf.   Ch.    (N.  Y.)    103;    James  v. 

Ch.  (N.  Y.)  380.  James,  4  Paige  (N.  Y.)  114. 

^"  See,    Martin    v.    Dryden,    6    111.  '"  Harris   v.    Harris,    6    Gill    &   J. 

187;  Christie  v.  Bishop,  1  Barb.  Ch.  (Md.)    Ill;    Stephenson  v.  Stephen- 

(N.  Y.)    105;   Gilmore  v.  Patterson,  son,  6  Paige  (N.  Y.)  353. 

36  Me.  544;  Dick  v.  Hamilton,  Deady  "'Story  Eq.  PI.  (10th  ed.),  §  871; 

(U.  S.)    322,  7  Fed.  Cas.  No.  3890;  see  also,  Tompkins  v.  Tompkins,  18 

Porter  v.  Rutland  Bank,  19  Vt.  410.  N.  J.  Eq.  303;  but  compare,  Robert- 

''=*  Pleasonton  v.  Raughley,  3  Del.  son  v.  Parks,  3  Md.  Ch.  65;  Lock  v. 

Ch.   124;    Miles  v.   Miles,   32   N.   H.  Foots,  4  Sim.  132. 

147,  64  Am.  Dec.  362;  Mills  v.  Gore,  ''"See,    Sawyers   v.    Swayers,    106 

20    Pick.    (Mass.)    28;    Carithers   v.  Tenn.   597,   61   S.  W.   1022;    Shirley 

Jarrell,  20  Ga.  842;  Glenn  v.  Baker,  v.    Shields,    8    Blackf.     (Ind.)     273 

1  Md.  Ch.  73;   Salmon  v.  Smith,  58  Campbell  v.  Campbell,  1  Ind.  220. 

Miss.  399;  but  see,  Frank  v.  Lilien-  ""Farley  v.  Kittson,  120  U.  S.  303, 

feld,  33  Gratt.   (Va.)  377;   Larkins's  7  Sup.  Ct.  534;    see  also.  Roache  v. 

Appeal,  38  Pa.  St.  457.  Morgell,    2   Schoales  &  L.   721,   725. 

"»Bulkley  v.  Van  Wyck,  5   Paige  727;   Stead  v.  Course,  4  Cranch  (U. 

(N.    Y.)    536;    Wright   v.    Miller.    1  S.)    403,   413;    Heartt  v.  Corning,  3 


§§  3309,  3210.]      PROCEEDINGS  IN  EQUITY.  542 

bill  will  control  conflicting  averments  in  the  plea  even  thougli  the 
latter  is  verified. ^^^  But  it  has  been  held  that  a  plea  may  be  used 
against  the  party  pleading  where  it  contains  admissions  against  liis 
interest,  even  on  the  hearing  of  another  plea  or  answer  in  the  cause.  ^■*- 

§  3209.  Cross-bill  and  answer. — A  cross-bill  which  is  taken  as 
confessed  may  be  used  as  evidence  against  the  complainant  in  the 
original  case  on  the  hearing  to  the  same  effect  as  if  he  had  admitted 
the  same  facts  in  the  answer.^*^  It  has  been  held,  however,  that 
where  the  defendant  files  a  cross-bill  setting  out  new  matter,  and 
does  not  call  on  complainant  to  answer  as  to  the  same,  the  allega- 
tions will  not  be  taken  as  true  and  the  defendant  will  be  required 
to  prove  them.^**  So,  it  has  been  said  that  when  the  defendant  in 
the  original  bill  takes  on  himself  the  affirmative  by  a  cross-bill,  and 
submits  his  rights  to  the  conscience  of  those  originally  complaining, 
he  must  abide  by  the  response  of  the  complainants,  unless  by  more 
than  equal  evidence  they  disprove  the  same.^'*^  And  it  has  been  held 
that  a  complainant  cannot  use  his  own  answer  to  a  cross-bill  as  evi- 
dence unless  the  defendant  first  produces  it  in  evidence.^'*''  In  a 
recent  case  where  the  issues  raised  by  a  bill  and  those  raised  by  a 
cross-bill  were  entirely  different,  and  the  evidence  of  a  witness  given 
on  the  prior  trial  of  the  issue  raised  by  the  cross-bill  was  not  rele- 
vant to  the  issue  raised  by  the  bill  it  was  held  proper  to  refuse 
to  permit  such  evidence  to  be  read  on  the  trial  of  the  issue  raised 
by  the  bill.i*^ 

§  3210.  Witnesses. — The  fourth  source  of  evidence  in  equity,  ac- 
cording to  Professor  Greenleaf,  is  the  testimony  of  witnesses.  Little 
is  required  to  be  said  upon  this  subject,  as  the  rules  of  competency 
are  in  general  the  same  in  equity  as  at  laAv,  and,  under  modern 
statutes,  interest  no  longer  renders  a  witness  incompetent  in  ordi- 
nary cases.   But  it  may  be  noted,  in  passing,  that  the  courts  of  equity 

Paige  (N.  Y.)  566;  Rhode  Island  v.  137;    White  v.  Buloid,   2  Paige    (N. 

Massachusetts,  14  Pet.   (U.  S.)   210;  Y.)  164. 

Hughes  V.  Blake,  6  Wheat.   (U.  S  )  ^^  Hartfield  v.  Brown,  8  Ark.  283. 

453;    Gernon  v.  Boccaline,   2  Wash.  "=16    Cyc.   402,    citing,   Hutton   v. 

(U.  S.)    199,  10  Fed.  Cas.  No.  5366.  Moore,  26  Ark.  382;   Pugh  v.  Pugh, 

"^  Mutual   Life   Ins.   Co.   v.   Blair,  9  Ind.  132, 

130  Fed.  971.  ""  Kidder  v.  Barr,  35  N.  H.  235. 

"=  McNair  v.  Ragland,  16  N.  Car.  '"  Beamer  v,  Morrison,  210  111.  443, 

533.  71  N.  E.  402. 

""  Griswold  v.  Simmons,  50  Miss. 


543  WHAT    MUST    BE    TROVED — BURDEN.  [§    3211. 

were  somewhat  more  liberal  than  the  courts  of  law  in  examining 
parties  and  interested  persons  in  some  cases,"^  and  the  examina- 
tion of  a  defendant  by  the  plaintiff,  as  a  witness,  usually  operated 
as  an  equitable  release  as  to  the  matters  covered  by  the  examina- 
tion.^*^ So,  under  the  old  chancery  practice,  the  testimony  of  wit- 
nesses was  usually  taken  by  deposition  or  the  like  and  oral  evidence 
was  seldom  received  at  the  hearing.  But  the  modern  tendency  is  to 
receive  oral  testimony  in  many  cases  as  well  as  depositions.  The  sub- 
ject of  depositions  has  been  treated  in  another  volume,^  ^^  and  the 
mode  of  taking  testimony  in  the  courts  of  equity,  especially  under 
the  acts  of  congress  and  United  States  equity  rules,  has  already  been 
sufficiently  considered  in  other  sections  in  this  chapter. 

§3211.  What  must  be  proved — Burden. — "It  may  be  laid  down 
as  an  indisputable  proposition,"  says  :Mr.  Daniell,  "that  whatever  is 
necessary  to  support  the  case  of  the  plaintiff,  so  as  to  entitle  him  to  a 
decree  against  the  defendant,  or  of  a  defendant  to  support  his  own 
case  against  that  of  the  plaintiff",  must  be  proved ;  unless  it  is  admitted 
by  the  other  party ."^^^  A  material  averment  in  the  bill  neither  ad- 
mitted nor  denied  by  the  answer  must  be  supported  by  proof.^^^ 
Wlien  a  replication  is  filed  to  an  answer,  it  thereby  puts  in  issue  all 
the  matters  alleged  in  the  bill  and  not  admitted  by  the  answer,  as 
well  as  those  matters  contained  in  the  answer  which  are  not  re- 
sponsive to  the  bill.^^^  But,  where  an  answer  under  oath  is  waived, 
or  it  is  not  under  oath  or  is  not  responsive,  a  preponderance  of  the 

"'3  Greenleaf  Ev.,  §  313;   Man  v.  "=Glos  v.  Cratty.  196  111.  193,  63 

"Ward,  2  Atk.  228,  229.  N.  E.  690,  and  other  Illinois  cases 

'"3    Greenleaf   Ev.,    §    316;    Wey-  there   cited;    Milligan   v.   Wissman, 

mouth    V.    Boyer,    1    Ves.    Jr.    417;  (Tenn.    Ch.    App.)     42    S.    W.    811; 

Nightingale    v.    Dodd,    Ambl.    583;  Bank  v.  Jefferson,  92  Tenn.  537,  22 

Lewis  V.  Owen,  1  Ired.  Eq.  (N.  Car.)  S.  W.  211;  Crowe  v.  Wilson,  65  Md. 

290,    293;    Palmer  v.   Van   Doren,    2  479,  5  Atl.  427,  57  Am.  R.  343;   Mc- 

Edw.  Ch.  (N.  Y.)  192.  Arthur  v.  Phoebus.  2  Ohio  415;  Mor- 

^^See,  Vol.  II.,  Chap.  54.  ris  v.  Morris,  5  Mich.  171;  Moffat  v. 

i"l  Daniell  Ch.  Pr.  (6th  ed.)  836;  McDowall,  1  McCord  Eq.    (S.  Car.) 

see  also,  Thompson  v.  Thompson,  1  434;  Lovell  v.  Johnson,  82  Fed.  206. 

Yerg.  (Tenn.)  97;  Peck  v.  Hunter,  7  '^^  Pinney  v.  Pinney,  (Fla.)  35  So. 

Ind.  295;  Campbell  v.  Brackenridge,  95;    Stackpole   v.    Hancock,   40   Fla. 

8    Blackf.    (Ind.)    471;    Johnson    v.  362,  24  So.  914,  45  L.  R.  A.  814;   18 

McGrew,  11  Iowa  151,  77  Am.  Dec.  Ency.   of  PI.  &  Pr.   683;    Humes  v. 

137;  Gilbert  V.  Mosier,  11  Iowa  498;  Scruggs,  94  U.  S.  22,  24  L.  Ed.  51; 

Pusey   V.    Wright,    31    Pa.    St.    387;  Smith  v.    St.   Louis  &c.   Ins.   Co.,   2 

Nelson  v.  Pinegar,  30  111.  473.  Tenn.  Ch.  599. 


3311.] 


PKOCEEDIXGS    IX    EQUITY. 


544 


evidence  to  sustain  the  material  allegations  of  the  bill  is  usually 
sufficient.^^*  A  replication  to  an  answer  puts  in  issue  every  aver- 
ment therein  not  responsive  to  the  bill  and  requires  the  defendant  to 
produce  evidence  to  establish  his  defense  set  up  in  such  answer  by  way 
of  avoidance.^^^  But  a  replication  to  a  plea  usually  puts  in  issue 
only  the  truth  of  the  plea,  which  the  defendant  must  produce  evi- 
dence to  establish/^*'  and  the  evidence  in  such  case  is  confined  to  that 
issue.  ^^'^ 


^"Parker  V.  Safford,  (Fla.)  37  So. 
567;  see  also,  Reynolds  v.  Pharr,  9 
Ala.  560. 

>==Orman  v.  Barnard,  5  Fla.  528; 
Bradley  v.  Webb.  53  Me.  462;  Peaks 
v.  McAvey,  (Me.)  7  Atl.  270;  Craft 
V.  Russell,  67  Ala.  9;  Lake  Shore  &c. 
R.  Co.  v.  McMillan,  84  111.  208;  Peck 
V.  Hunter,  7  Ind.  295;  Todd  v.  Ster- 
rett,  6  J.  J.  Marsh.  (Ky.)  425;  Dyer 
V.  Williams,  62  Miss.  302;  Wilkinson 
V.  Bauerle,  41  N.  J.  Eq.  635,  7  Atl. 
614;  Jones  v.  Jones,  1  Ired.  Eq.  (N. 
Car.)  332;  Hart  v.  Ten  Eyck,  2 
Johns.  Ch.  (N.  Y.)  62;  Simson  v. 
Hart,  14  Johns.  (N.  Y.)  63;  Barr  v. 
Haseldon,  10  Rich.  Eq.  (S.  Car.)  53; 
Deaderick  v.  Watkins,  8  Humph. 
(Tenn.)  520;  Garlick  v.  McArthur, 
6  Wis.  450;  Humes  v.  Scruggs,  94 
U.  S.  22;  Clements  v.  Moore,  6  Wall. 
(U.  S.)  299;  see  also,  O'Hare  v. 
Downing,  130  Mass.  16;  Leach  v. 
FoDes,  11  Gray  (Mass.)  506,  71  Am. 
Dec.  732;  Hart  v.  Carpenter,  36 
Mich.  402. 

""  Miller  v.  United  States  &c.  Co., 
6x  N.  J.  Eq.  110,  47  Atl.  509;  Stead 
V.  Course,  4  Cranch   (U.  S.)   403. 

"^'Little  v.  Stephens,  82  Mich.  596, 
47  N.  W,  22;  Fish  v.  Miller,  5  Paige 
(N.  Y.)  26.  Upon  the  general  sub- 
ject under  consideration  it  is  said  in 
Ocala  Foundry  &c.  Works  v.  Lester, 
(Fla.)  38  So.  56,  62:  "The  general 
rule  is  that  when  a  replication  has 
been  filed  to  a  plea  it  is  incumbent 
upon    the    defendant   to    prove    the 


facts  which  the  plea  suggests.  1 
Daniell  Ch.  PI.  &  Pr.  (6th  Am.  Ed.) 
698;  Dowsv.  McMichael,  6  Paige  (N. 
Y.)  139;  Farley  v.  Kittson,  120  U. 
S.  303,  7  Sup.  Ct.  534,  30  L.  Ed.  684; 
Story  Eq.  PI.  (10th  Ed.),  §  697; 
Fletcher  PI.  &  Pr.,  §  279;  1  Foster 
Fed.  Pr.  (3rd  Ed.),  §  142;  Stead  v. 
Course,  4  Cranch  ( U.  S.)  403,  2  L. 
Ed.  660;  United  States  v.  California 
&c.  Co.,  148  U.  S.  31,  13  Sup.  Ct.  458, 
37  L.  Ed.  354;  Beames  Pleas  in  Eq. 
325.  See,  especially,  Langdell  Eq. 
PI.  (2d  ed.),  §§  101,  108,  making  a 
distinction  in  applying  this  rule  be- 
tween pure  or  affirmative  pleas  and 
negative  pleas.  However,  the  plea 
filed  in  the  instant  case  could  not  be 
held  to  be  a  negative  plea,  and  there- 
fore we  are  of  the  opinion  that  it 
was  incumbent  upon  the  appellees 
to  prove  the  matters  contained  in 
their  plea.  As  to  the  matters  con- 
tained in  the  answer  which  were  not 
in  support  of  the  plea,  but  which 
were  responsive  to  the  bill,  the  bur- 
den was  upon  the  appellant  to  prove 
the  allegations  in  its  bill.  As  the 
answer  was  under  oath,  the  oath 
therefore  not  having  been  waived, 
it  further  follows  that  the  sworn  an- 
swer was  evidence  in  favor  of  the 
appellees  as  to  those  matters  con- 
tained therein  which  were  directly 
and  positively  responsive  to  the  ma- 
terial allegations  of  the  bill,  and 
that  as  to  those  matters  such  an  an- 
swer was  conclusive,  unless  its  pro- 


545 


SUBSTANCE   OF    ISSUE. 


[§  3212. 


§  3212.  Substance  of  issue. — In  equity,  as  at  law,  it  is  generally 
sufficient  to  prove  the  substance  of  the  issue.^^^  But  decrees  in 
equity  are  usually  more  specific  than  ordinary  judgments,  and  in 
order  to  obtain  the  particular  relief  prayed  for  it  is  sometimes 
necessary  to  go  more  into  detail  and  to  more  clearly  prove  the 
specific  facts  than  it  is  in  order  to  obtain  an  ordinary  judgment 
in  actions  at  law.^^^  Yet,  on  the  other  hand,  courts  of  equity  have 
power  to  so  mould  their  decrees  as  to  give  complete  and  adequate 
relief  according  to  the  allegations  and  the  proof  and  the  justice  of  the 
cause,  and  they  have  not  always  been  so  strict  as  some  of  the  old 
common  law  courts  were  in  holding  a  variance  fatal.  And,  in  some 
instances,  where  through  inadvertance  or  the  like  the  plaintiff  had 
omitted  to  make  full  proof  of  some  essential  fact  the  court  would 
give  him  leave  to  do  so  even  after  the  case  had  come  up  for  hearing."" 
So,  in  exceptional  cases,  where  justice  seemed  to  require  it,  a  second 
or  re-examination  of  the  same  witness  was  sometimes  allowed."^ 


bative  force  and  effect  was  overcome 
by  the  testimony  of  two  witnesses, 
or  the  testimony  of  one  witness  cor- 
roborated by  other  circumstances 
which  were  of  greater  probative 
weight  than  the  answer.  Pinney  v. 
Pinney,  (Fla.)  35  So.  95,  and  author- 
ities cited  therein.  It  follows,  then, 
that  in  part  the  burden  of  proof 
rested  upon  the  appellant  and  in 
part  upon  the  appellees.  1  Foster 
Fed.  Pr.  (3rd  Ed.),  §  137." 

16*  See,  Phoenix  &c.  Ins.  Co.  v. 
Hinesley,  75  Ind.  1;  Johnston  v. 
Glancy,  4  Blackf.  (Ind.)  94,  96,  97, 
28  Am.  Dec.  45;  Hart  v.  Hawkins, 
3  Bibb  (Ky.)  502,  6  Am.  Dec.  666, 
672;  Eldridge  v.  Turner,  11  Ala. 
1049;  Booth  v.  "Wiley,  102  111.  84; 
Loewenstein  v.  Rapp,  67  111.  App. 
678;  Hooper  v.  Holmes,  11  N.  J.  Eq. 
122;  Campbell  v.  Bowles,  30  Gratt. 
(Va.)  652;  Kline  v.  Triplett,  (Va.) 
25  S.  E.  886;  Synnott  v.  Shaugh- 
nessy,  130  U.  S.  572,  9  Sup.  Ct.  609; 
Harrigan  v.  Gilchrist,  121  Wis.  127, 
99  N.  W.  909;  Gresley  Eq.  Ev.  169. 

1°°  See,  Rockecharlie  v.  Rocke- 
charlie,  (Va.)  29  S.  E.  825;  Dalzell 
Vol.  4  Elliott  Ev.— r?5 


v.  Manufacturing  Co.,  149  U.  S.  315, 
13  Sup.  Ct.  886;  Rejall  v.  Greenhood, 
35  C.  C.  A.  97,  92  Fed.  945;  Vawter 
v.  Bacon,  89  Ind.  565;  Ahl's  Appeal, 
129  Pa.  St.  49,  18  Atl.  477;  Hawes  v. 
Brown,  75  Ala.  385;  Land  v.  Cowan, 
19  Ala.  297;  Kelly  v.  Kelly,  54  Mich. 
30,  19  N.  W.  580;  Rice  v.  Rigley,  7 
Idaho  115,  61  Pac.  290;  Lockhart  v. 
Leeds,  195  U.  S.  427,  25  Sup.  Ct.  76; 
Harrigan  v.  Gilchrist,  121  Wis.  127, 
99  N.  W.  909. 

""  See,  Thexton  v.  Edmonston,  L. 
R.  5  Eq.  373;  Chichester  v.  Chiches- 
ter, 24  Beav.  289;  Wood  v.  Stane, 
8  Price  613;  Abrams  v.  Winshup,  1 
Russ.  526;  Hughes  v.  Fades,  1  Hare 
486,  488,  6  Jur.  455;  1  Daniell  Ch. 
Pr.  (6th  Ed.)  858,  890;  Greeley  Eq. 
Ev.   (Am.  Ed.)   132-138. 

^"1  See,  Wood  v.  Mann,  2  Sumn.  (U. 
S.)  316;  Lord  Arundell  v.  Pitt,  Amb. 
585;  Cox  V.  Allingham,  Jac.  337.  But 
this  was  only  done  in  exceptional 
cases.  Beach  y.  Fulton  Bank,  3 
Wend.  (N.  Y.)  573;  Gray  v.  Murray, 
4  Johns.  Ch.  (N.  Y.)  412;  Noel  v. 
Fitzgerald,  1  Hogan  135;  Lord  Aber- 
gavenny V.  Powell,  1  Mer.  130. 


3213.] 


PROCEEDINGS    IN    EQUITY. 


54G 


§  3213.  Substance  of  issue — Variance. — It  is  not  only  necessary 
that  the  substance  of  the  case  made  by  each  party  should  be  proved, 
but  it  must  be  substantially  the  same  as  that  which  he  has  stated 
upon  the  record/*^^  for  the  Court  will  not  allow  a  party  to  be  taken 
by  surprise,  by  the  other  side  proving  a  case  different  from  that 
set  up  in  the  pleadings.^"  And,  as  a  general  rule,  "no  facts  are 
properly  in  issue  unless  charged  in  the  bill,  nor  can  relief  be  granted 
for  matters  not  charged,  although  they  may  be  apparent  from  other 
parts  of  the  pleading  and  evidence;  for  the  court  pronounces  its  de- 
cree secundum  alegata  et  probata.""*  As  said  by  one  court:  "It  is  an 


"==Hobart    v.    Andrews,    21    Pick. 
(Mass.)   526,  534;   Bellows  v.  Stone. 
14  N.  H.  175;  Hooper  v.  Strahan,  71 
Ala.    75;    Crothers  v.    Lee,    29   Ala. 
337;  Hope  v.  Johnston,  28  Fla.  55,  9 
So.    830;    Bowman    v.    O'Reilly,    31 
Miss.    261;    Reynolds    v.    Morris,    7 
Ohio  St.  310;    Williams  v.  Starr,   5 
Wis.  534;    Gurney  v.  Ford,  2  Allen 
(Mass.)    576;   Andrews  v.  Farnham, 
10  N.  J.  Eq.  94;   McWhorter  v.  Mc- 
Mahan,  10  Paige  (N.  Y.)  386;  Sears 
V.  Barnum,  1  Clark  Ch.  (N.  Y.)  139 
Singleton    v.    Scott,    11    Iowa    589 
Simplot   V.    Simplot,    14    Iowa   449 
Peckham  v.  Buffam,  11   Mich.   529 
Holman    v.    Vallejo,    19    Cal.    498 
Ohling  V.  Luitjens,  32  111.  23;   Tuck 
V.  Downing,  76  111.  71;  Abbott  v.  Ab- 
bott,  189   111.   488,   59  N.   E.   958,   82 
Am.  St.  470. 

i°U  Daniell  Ch.  Pr.  860. 

i^^l  Beach  Mod.  Eq.  Pr.,  §  99; 
Story  Eq.  PI.  (10th  Ed.),  §  257;  An- 
derson V.  Northrop,  (Fla.)  12  So. 
318;  Glascott  v.  Lang,  2  Phil.  Ch. 
310;  Phelps  v.  Elliott,  35  Fed.  455; 
Simms  v.  Guthrie,  9  Cranch  (U.  S.) 
19;  Eyre  v.  Potter,  15  How.  42; 
Boone  v.  Chiles,  10  Pet.  (U.  S.)  177; 
Hart  v.  Stribling,  21  Fla.  136;  Gros- 
holz  V.  Newman,  21  Wall.  (U.  S.) 
481;  Brainerd  v.  Arnold,  27  Conn. 
617;  Rubber  Co.  v.  Goodyear,  9  Wall. 
(U.  S.)   788;   Marshman  v.  Conklin, 


21  N.  J.  Eq.  546;  Armstrong  v.  Ross,. 
2U  N.  J.  Eq.  109;  Vansciver  v.  Bryan, 
13  N.  J.  Eq.  434;  Lehigh  Valley  R. 
Co.  v.  McFarlan,  30  N.  J.  Eq.  180; 
Wilson  V.  Cobb,  28  N.  J.  Eq.  177,  and 
Smith  v.  Axtell,  1  N.  J.  Eq.  494; 
Myers  v.  Steel  Mach.  Co.,  (N.  J.  Eq.) 
57  Atl.  1080;  Riddle  v.  Keller,  61  N. 
J.  Eq.  513,  48  Atl.  818;  Stucky  v. 
Stucky,  30  N.  J.  Eq.  546,  554;  see 
also,  Kelly  v.  Kelly,  54  Mich.  30,  19 
N.  W.  580;  Judy  v.  Gilbert,  77  Ind. 
96,  40  Am.  R.  289;  Kelsey  v.  West- 
ern, 2  N.  Y.  500;  Reynolds  v.  Morris, 
7  Ohio  St.  310;  Kruschke  v.  Stefan,. 
83  Wis.  373,  53  N.  W.  679;  Brodie  v. 
Skelton,  11  Ark.  120;  Rogers  v. 
Brooks,  30  Ark.  612;  Hilleary  v. 
Hurdle,  6  Gill  (Md.)  105;  Schneider 
v.  Patton,  175  Mo.  684,  75  S.  W.  155; 
McClung  V.  Colwell,  107  Tenn.  592, 
64  S.  W.  890,  89  Am.  St.  961;  Stead- 
man  V.  Handy,  102  Va.  382,  46  S.  E. 
3b0.  "It  is  also  an  established  rule 
of  chancery  practice,  and  of  plead- 
ing and  practice  generally,  that  the 
allegata  and  probata  must  corre- 
spond. However  full  and  convincing 
may  be  the  proof  as  to  any  essential 
fact,  unless  the  fact  is  averred, 
proof  alone  is  insufficient.  All  the 
evidence  offered  in  a  case  should 
correspond  with  the  allegations,  and 
be  confined  to  the  issues."  Tate  v. 
Pensacola  Gulf  &c.  Co.,  37  Fla.  439,. 


547  SUBSTANCE    OF    ISSUE VAEIANCE.  [§    3213. 

established  doctrine  of  this  court,  that  where  the  bill  sets  up  a  case  of 
actual  fraud,  and  makes  that  the  ground  for  the  prayer  for  relief, 
the  complainant  is  not  in  general  entitled  to  a  decree  by  establishing 
some  one  or  more  of  the  facts,  quite  independent  of  fraud,  which 
might  of  themselves  create  a  case  under  a  distinct  head  of  equity 
from  that  which  would  be  applicable  to  the  case  of  fraud  originally 
stated."^®'*  A  party  cannot  proceed  on  one  theory  and  recover  on  an- 
other. Thus,  it  has  been  held  that  he  cannot  proceed  on  the  theory 
of  an  express  trust  and  recover  on  an  implied  trust,  although  it  turns 
out  that  the  express  trust,  being  in  parol,  is  void  under  the  statute 
of  frauds.^®®  So,  where  a  bill  charges  fraud,  there  can  be  no  re- 
covery even  though  the  facts  might  have  justified  equitable  relief  on 
some  other  distinct  theory.^''''  And,  in  a  recent  case,  an  allegation 
in  a  bill  that  the  grantor  in  a  deed  failed  to  retain  a  certain  reserva- 
tion set  forth  in  a  written  contract  authorizing  such  deed,  was  held 
not  sustained  by  proof  that  it  was  omitted  by  reason  of  an  agree- 
ment between  the  parties  that  the  grantee  should  make  a  separate- 
deed  for  such  reservation.^ ^^  But  the  rule  that  the  pleading  and 
proof  must  correspond  and  that  a  substantial  variance  is  generally 
fatal  is  to  be  applied  equitably  and  not  rigidly  or  technically,  espe- 
cially when  it  is  invoked  by  a  party  having  full  knowledge  of  the 
facts  during  the  entire  progress  of  the  cause,  and  therefore  not  mis- 
led by  a  pleading  which,  although  it  is  not  specific  or  is  inaccurate  as 
to  some  of  the  details,  yet  contains  averments  sufficient  to  support 

20  So.  542,  53  Am.  St.  251;   quoted  Krusckke  v.  Stefan,  83  Wis.  373,  53: 

with  approval  in,  Pinney  v.  Pinney,  N.  W.  679;  Dashiell  v.  Grosvenor,  li 

(Fla.)  35  So.  95,  100.  C.  C.  A.  593,  66  Fed.  334,  27  L.  R.  A. 

^•^Hoyt  v.  Hoyt,  27  N.  J.  Eq.  399,  67;  but  compare.  Hood  v.  Smith,  79 

402,  citing,  Montesquieu  v.  Sandys,  Iowa  621,  44  N.  W.  903. 

18  Ves.  302.  "^  Caton  v.  Raber,   (W.  Va.)  49  S. 

^""Mescall  v.  Tully,  91  Ind.  96;  see  E.  147.   "In  so  far  as  the  testimony 

also,  Smoot  v.  Strauss,  21  Fla.  611;  tends   to   show   any   acts   of   fraud 

Hays  V.  Carr,  83  Ind.  275;  Parker  v.  upon   the   part   of   appellant    other 

Beavers,  19  Tex.  406;  Lanterman  v.  than  those  alleged  in  the  bill,  that 

Abernathy,  47  111.  437.  cannot    avail    appellee."     Pinney    v. 

"^Keen  v.  Maple  Shade  &c.  Land  Pinney,  (Fla.)  35  So.  95,  101,  citing; 

Co.,  63  N.  J.  Eq.  325,  50  Atl.  467,  92  Howard    v.    Pensacola    &c.    R.    Co.. 

Am.  St.  682;  Hoyt  v.  Hoyt,  27  N.  J.  24  Fla.  560,  5  So.  356;  Tate  v.  Pensa- 

Eq.  399;  Babbitt  v.  Dotten,  14  Fed.  cola,  Gulf  &c.  Co..  37  Fla.  439,  455. 

19;    see   also,   generally,    Ewing   v.  20    So.    542,   53   Am.    St.    251;    Par- 

Sandoval  &c.  Co.,  110  111.  290;  Rob-  rish  v.  Pensacola  &c.  R.  Co.,  28  Fla. 

inson     v.     Cullom,     41     Ala.     693;  251,  9  So.  696. 


§  3214.] 


PROCEEDINGS   IN   EQUITY. 


548 


a  claim  for  the  relief  prayed  for.^*'^  "It  is  undoubtedly  a  well  set- 
tled rule  in  equity,  that  the  decree  must  conform  to  the  bill,  and  be 
warranted  by  it  both  in  tlie  relief  and  in  the  grounds  of  relief.  Re- 
lief not  embraced  in  the  prayer  of  the  bill  cannot  be  decreed,  nor  can 
the  relief  asked  for  be  granted  upon  grounds  not  disclosed  by  the 
bill.  It  is,  however,  no  objection  that  the  relief  established  by  the 
proof  is  broader  and  stronger  than  that  stated  in  the  bill,  or  that 
grounds  of  relief  not  contained  in  the  bill  are  established  in  evi- 
dence, provided  the  decree  is  warranted  by  the  charges  and  prayers 
of  the  bill,  and  the  bill  sustained  by  the  evidence."^^" 

§  3214.  Evidence  confined  to  issues. — "It  is  the  fundamental 
maxim,  both  in  courts  of  equity  and  in  courts  of  law,"  says  Mr. 
Daniell,  "that  no  proof  can  be  admitted  of  any  matter  which  is  not 
noticed  in  the  pleadings.''^^^  In  certain  cases,  however,  evidence  of 
particular  facts  may  be  given  under  general  allegations,  although 
the  particular  facts  so  intended  to  be  proved  are  not  specifically 
stated  in  the  pleadings."-     The  cases  referred  to,  namely,  those  in 


'«*  Crawford  v.  Moore,  28  Fed.  824, 
827;  Moore  v.  Crawford,  130  U.  S. 
122,  9  Sup.  Ct.  447;  Pope  v.  Allis, 
115  U.  S.  363,  6  Sup.  Ct.  69;  Taft  v. 
Taft,  73  Mich.  502,  41  N.  W.  481; 
Stearns  v.  Reidy,  135  111.  119,  25  N. 
E.  762;  Beers  v.  Botsford,  13  Conn. 
146. 

"'Ryerson  v.  Adams,  6  N.  J.  Eq. 
618;  Thornton  v.  Ogden,  32  N.  J.  Eq. 
723.  In  other  words,  it  is  suflBcient 
ii  the  substance  of  the  issue  be  es- 
tablished. Phoenix  &c.  Ins.  Co.  v. 
Hinesley,  75  Ind.  1;  see  also,  Goree 
V.  Clements,  94  Ala.  337,  10  So.  906; 
Davis  V.  Guilford,  55  Conn.  351; 
Zeininger  v.  Schnitzler,  48  Kans.  63, 
28  Pac.  1007;  Lawrence  v.  Hester,  93 
N.  Car.  79;  Morrow  v.  Turney,  35 
Ala.  131;  OfCutt  v.  Scott,  47  Ala.  104; 
Keaton  v.  Miller,  38  Miss.  630;  On- 
tario Bank  v.  Schermerhorn,  10 
Paige  (N.  Y.)  109;  Booth  v.  Wiley, 
102  111.  84;  Benson  v.  Keller,  37  Ore. 
120,  60  Pac.  918.  A  variance  be- 
tween the  proof  and  immaterial  alle- 


gations of  the  bill  is  not  fatal  to  the 
decree.  Johnston  v.  Glancy,  4 
Blackf.  (Ind.)  94.  28  Am.  Dec.  45. 

"'1  Daniell  Ch.  Pr.  (6th  Ed.) 
852;  Smith  v.  Clarke,  12  Ves.  477, 
480;  Whaley  v.  Norton,  1  Vern.  483; 
Gordon  v.  Gordon,  3  Swanst.  400, 
472;  Clarke  v.  Turton,  11  Ves.  240; 
Williams  v.  Llewellyn,  2  Y.  &  J.  68; 
Sidney  v.  Sidney.  3  P.  Wms.  269, 
276;  Hall  v.  Maltby,  6  Price  240, 
259;  Powys  v.  Mansfield,  6  Sim.  528, 
565;  Langdon  v.  Goddard,  2  Story 
(U.  S.)  267;  James  v.  M'Kernon,  6 
Johns.  (N.  Y.)  543;  Lyon  v.  Tall- 
madge,  14  J6hns.  (N.  Y.)  501;  An- 
derson V.  Northrop,  30  Fla.  612;  Bar- 
rett V.  Sergeant,  18  Vt.  365;  Pinson 
V.  Williams,  23  Miss.  64;  Kidd  v. 
Manley,  28  Miss.  156;  Surget  v.  By- 
ers,  1  Hemp.  (U.  S.)  715;  Craige 
V.  Craige,  6  Ired.  Eq.  (N.  Car.)  191; 
Moores  v.  Moores,  16  N.  J.  Eq.  275; 
Chandler  v.  Herrick,  11  N.  J.  Eq. 
497. 

'"Whaley  v.  Norton,  1  Vern.  483; 


549  EVIDENCE    CONFIXED   TO    ISSUE.  [§'   3214. 

which  evidence  of  particular  facts  may  be  given  under  a  general  alle- 
gation or  charge,  or  namely,  a  case  in  which  the  character,  or  quality 
of  mind,  or  general  behavior  of  a  party  comes  in  issue,  but  this  may 
be  done  in  some  other  case  as  well,  as,  for  instance,  where  the  ques- 
tion of  notice  is  raised  in  the  pleadings  by  a  general  allegation  or 
charge.  "Thus,  where  the  defense  was  a  purchase  for  valuable  con- 
sideration, without  notice  of  a  particular  deed,  but,  in  order  to  meet 
that  case  by  anticipation,  the  bill  had  suggested  that  the  defendant 
pretended  that  she  was  a  purchaser  for  valuable  consideration,  with- 
out notice,  and  simply  charged  the  contrary,  the  deposition  of  a 
witness,  who  proved  a  conversation  to  have  taken  place  between  him- 
self and  the  third  person,  who  w^as  the  solicitor  of  the  defendant,  and 
the  consequent  production  of  the  deed,  was  allowed  to  be  read  as  evi- 
dence of  notice."^  In  such  a  case,  the  question  whether  the  party 
has  notice  or  not,  is  a  fact,  which  should  be  put  in  issue,  but  the 
mode  in  which  it  is  to  be  proved  need  not  be  put  upon  the  record ; 
for  the  rule  that  no  evidence  will  be  admitted,  in  support  of  any  facts 
but  those  which  are  mentioned  in  the  pleadings,  requires  that  the 
facts  only  intended  to  be  proved  should  be  put  in  issue,  and  not  the 
materials  of  which  the  proof  of  those  facts  is  to  consist."*  ^^^lere, 
however,  the  party  has  not  had  any  opportunity  of  disproving  a  par- 
ticular act  of  notice  which  was  proved  in  evidence,  although  not  al- 

Matthew  v.  Hanbury,  2  Vern.  187;  61;  Lee  v.  Beatty,  2  Dana  (Ky.)  204. 

Moores  v.  Moores,  16  N.  J.  Eq.  275;  See  also,  Whittaker  v.  Amwell  Nat. 

Hewett  V.  Adams,  50  Me.  271,  276;  Bank,  52  N.  J.  Eq.  400,  29  Atl.  203; 

Gresley  Eq.  Ev.  161,  et  seq.;   Story  Eppinger  v.  Canepa,  20  Fla.  262.  So, 

Eq.  PI.  28,  252,  It  has  been  held  that  evidence  of  collateral  facts  by  way 

relevant  admissions  of  the  defend-  of   inducement  may   be   admissible, 

ant    may    be    proved    against    him  Goodman  v.  Sayers,  2  J.  &  W.  249, 

though    not    alleged     in    the     bill.  259;     Bradley    v.    Chase,    9    Shepl. 

Cleveland  &c.  Co.  v.  United  States  (Me.)  511;  Gresley  Eq.  Ev.  237,  238. 

&c.  Co.,  52  Fed.  385;  Cannon  v.  Col-  '"Hughes  v.  Garner,  2  Y.  &  C.  328, 

lins,  3  Del.  Ch,  132.  And  it  may,  per-  335;  see  now.  R.  S.  C.  Ord.  XIX  26. 

haps,  be  stated  generally,  that  if  the  As   to   the   discovery   of   particular 

allegations  fairly  apprise  the  other  facts  under  a  general  allegation,  see 

party  of  the  nature  of  the  evidence  Saunders  v.  Jones,  L.  R.,  7  Ch.  Div. 

that  is  sought  to  be  introduced,  so  435;     Kuhliger    v.    Bailey,    W.    N. 

that  he  might  reasonably  expect  it,  (1881)   165;   Benbow  v.  Low,  L.  R., 

they    will    be    sufficient,    although  16  Ch.  Div.  93. 

somewhat  general   in  their  nature.  "'Blacker  v.  Phepoe,  1  Moll.  354; 

Moores  v.  Moores,  16  N.  J.  Eq.  275;  see,   Story  Eq.  PI.,  §§   28,   252,   263, 

Madison  v.  Wallace,  2  Dana   (Ky.)  2G5a. 


3214.] 


PROCEEDINGS    IN    EQUITY. 


550 


leged  in  the  pleadings,  and  inquiry  was  directed  whether  he  had  or 
had  not  notice."^^^  Documents  containing  relevant  admissions  have 
been  received  although  not  pleaded.^^'^  But  it  is  said  that  if  letters 
or  writings  in  the  hands  of  a  party  are  intended  to  be  used  against 
the  opposite  party  as  admissions  or  confessions  they  should  be  men- 
tioned in  the  pleadings.^"  And  this  principle,  it  is  said,  is  not  con- 
fined to  writings,  but  applies  to  every  case  where  the  admission  or 
confession  of  a  party  is  to  be  made  use  of  against  him;  thus,  it  has 
been  held,  that  evidence  of  a  confession  by  a  party  that  he  was  guilty 
of  a  fraud,  could  not  be  read  because  it  was  not  distinctly  put  in 
issue.^^®  So,  also,  evidence  of  alleged  conversations  between  a  wit- 
ness and  a  party  to  the  suit,  in  which  such  party  admitted  that  he 
had  defrauded  the  other,  was  rejected  because  such  alleged  con- 
versations had  not  been  noticed  in  the  pleadings."^  Wliere,  how- 
ever, the  conversation  is  in  itself  the  evidence  of  a  fact,  it  need  not  be 
specially  mentioned:  as,  where  the  notice  was  communicated  to  the 
defendant  by  a  conversation,  which  was  made  use  of  to  prove  the 
fact  of  the  conversation  having  taken  place,  and  not  as  an  admission 
by  the  party  that  he  had  received  notice. ^^^     It  has  been  held  that 


"*  Weston  V.  Empire  Assu.  Co.  L. 
R.,  6  Eq.  23;  1  Daniell  Ch.  Pr.  854, 
855. 

"*See,  Davy  v.  Garrett,  L.  R.,  7 
Ch.  Div.  473;  Steuart  v.  Gladstone, 
L.  R.,  10  Ch.  Div.  626. 

'"  1  Daniell  Ch.  Pr.  855;  Houlditch 
V.  Donegal,  1  Moll.  364;  Austin  v. 
Chambers,  6  CI.  &  F.  1;  Whitley  v. 
Martin,  3  Beav.  226;  Blacker  v. 
Phepoe,  1  Moll.  354;  but  see,  Mc- 
Mahon  v.  Burchell,  2  Phil.  127,  133, 
1  C.  P.  Coop.  temp.  Cott.  457,  475. 
See,  Moyers  v.  Kinnick,  1  Tenn.  Ch. 
App.  65,  although  the  bill  alleged  one 
transaction,  which  it  was  charged 
did  not  constitute  payment  of  a 
note,  and  the  proof  showed  a  dif- 
ferent transaction,  it  was  held  that 
while  the  latter  did  not  meet  the  al- 
legations of  the  bill  as  to  the  par- 
ticular transaction,  it  was  admissi- 
ble under  a  general  allegation  of 
non-payment,  also  made  in  the  bill. 


"»Hall  V.  Maltby,  6  Price  240; 
Mulholland  v.  Hendrick,  1  Moll.  359; 
but  see,  Cleveland  &c.  Co.  v.  United 
States  Co.,  52  Fed.  385;  Cannon  v. 
Collins,  3  Del.  Ch.  132. 

""Farrel  v.  ,  1  Moll.  363; 

McMahon  v.  Burchell,  2  Phil.  127;  1 
C.  P.  Coop.  temp.  Cott.  475;  Langley 
v.  Fisher,  9  Beav.  90,  101;  Graham 
V.  Oliver,  3  Beav.  124,  129;  Smith  v. 
Burnham,  2  Sumn.  (U.  S.)  612; 
Jenkins  v.  Eldredge,  3  Story  (U.  S.) 
181,  283,  284;  see.  Story  Eq.  PI., 
§  265a,  and  note;  Brown  v.  Cham- 
bers, Hayes  Exch.  597;  Malcolm  v. 
Scott,  3  Hare  39,  63;  Brandon  v. 
Cabiness.  10  Ala.  155;  Bishop  v. 
Bishop,  13  Ala.  475;  Camden  &c.  R. 
Co  V.  Stewart,  19  N.  J.  Eq.  343,  346, 
347. 

'*»  Hughes  V.  Garner,  2  Y.  &  C.  328, 
335;  Graham  v.  Oliver,  3  Beav.  124. 


•551 


PAROL   AND   SECONDARY    EVIDENCE. 


[§  321; 


evidence  of  a  fact  which  is  admitted  by  the  answer  may,  and  gen- 
erally should,  be  rejected. ^^^ 

§  3215.  Parol  and  secondary  evidence. — The  general  rule  that 
parol  evidence  is  not  admissible  to  contradict  or  vary  the  terms  of  a 
written  instrument  obtains  in  equity'''-  as  well  as  at  law.  But 
■owing,  perhaps,  more  to  the  nature  of  the  cases  rather  than  to  any 
peculiar  rule  of  equity,  parol  evidence  is  often  admitted  where  equita- 
ble relief  is  sought  on  the  ground  of  fraud  or  mistake.^'^  So,  as 
elsewhere  shown,  parol  evidence  is  often  admissible  to  prove  facts  and 
eircumstances  establishing  a  resulting  trust,'**  or  to  rebut  or  fortify 
an  equity.'*^  So,  too,  in  most  jurisdictions  it  is  well  settled  that 
parol  evidence  is  admissible  in  courts  of  equity,  in  a  proper  case,  to 
show  that  an  instrument  in  the  form  of  a  deed  absolute  on  its  face, 
or  the  like,  is  a  mere  security  for  a  debt  and  therefore  to  be  treated 
as  a  mortgage  or  the  like.^^^ 


"1  Robinson  v.  Philadelphia  &c.  R. 
Co.,  28  Fed.  577;  Morris  v.  Morris, 
38  Fed.  776. 

"=  Sullivan  v.  McLenans,  2  Iowa 
437,  65  Am.  Dec.  780;  Hart  v.  Clark, 
54  Ala.  490;  Peterson  v.  Grover,  20 
Me.  363;  Elysville  Mfg.  Co.  v.  Okisko 
Co.,  1  Md.  Ch.  392;  Cooper  v.  Tap- 
pan,  4  Wis.  362;  Hunt  v.  Rous- 
manier,  8  Wheat.  (U.  S.)  174.  It  is 
said,  however,  in  Stoutenburgh  v. 
Tompkins,  9  N.  J.  Eq.  332,  that 
courts  of  equity  are  often  more  lib- 
eral than  courts  of  law  in  admitting 
parol  evidence. 

'«' Story  V.  Gammell,  (Neb.)  94  N. 
W.  982;  Goode  v.  Riley,  153  Mass. 
585,  28  N.  E.  228;  Miller  v.  Gotten, 
5  Ga.  341;  Givan  v.  Masterson,  152 
Ind.  127,  51  N.  E.  237;  Bennett  v. 
Massachusetts  &c.  Ins.  Co.,  107  Tenn. 
371,  64  S.  W.  758;  Hunt  v.  Rous- 
manier,  8  Wheat.  (U.  S.)  174;  see 
also,  Vol.  I,  §§  574,  575,  591-595  and 
numerous  authorities  there  cited; 
Townshend  v.  Stangroom,  6  Ves. 
328;  Joines  v.  Statham,  3  Atk.  388. 
As  explained  in  the  sections  of  this 


work  above  referred  to,  however, 
the  theory  is  that  the  evidence  in 
such  cases  does  not  contradict  or 
vary  the  terms  of  a  valid  written 
contract,  but  goes  rather  to  show 
that  there  never  was  any  legal  con- 
tract or  to  prevent  fraud  or  raise  a 
superior  equity  and  give  the  con- 
tract its  true  effect.  See  also.  Pio- 
neer Gold  Min.  Co.  v.  Baker,  23  Fed. 
258. 

'^Vol.  I,  §  586.  See  also.  Shackle- 
ford  V.  Elliott,  209  111.  333.  70  N.  E. 
745;  McMurray  v.  McMurray,  180 
Mo.  526,  79  S.  W.  701;  but  compare, 
De  Hihns  v.  Free,  (S.  Car.)  49  S.  E. 
841. 

^^Vol.  I,  §  588. 

•^Vol.  I,  §  587.  See  also.  Meeker 
v.  Warren,  (N.  J.  Eq.)  57  Atl.  421; 
Welborn  v.  Dixon,  (S.  Car.)  49  S.  E. 
232;  County  of  Harlan  Co.  v.  Whit- 
ney, 65  Neb.  105.  90  N.  W.  993,  101 
Am.  St.  610.  But  compare,  Ostenson 
v.  Severson,  (Iowa)  101  N.  W.  789; 
Morrison  v.  Jones,  (Mont.)  77  Pac. 
5u7. 


§  3216.]  PROCEEDIXGS  IX  EQUITY.  552 

§  3216.  Weight  and  sufficiency  of  evidence. — As  a  general  rule  it 
may  be  said  that,  with  a  few  exceptions,  evidence  usually  has  the  same 
weight  and  effect  in  equity  as  at  law,  and  that  it  is,  in  most  in- 
stances at  least,  sufficient  to  sustain  and  establish  an  issue  by  a  pre- 
ponderance of  the  evidence.  But  there  are  expressions  in  some  cases 
indicating  that  certain  matters  or  issues  must  be  shown  or  established 
beyond  a  reasonable  doubt,  and  even  where  no  such  rule  has  been 
announced  it  seems  in  many  instances  that  to  constitute  a  satis- 
factory preponderance  of  the  evidence  in  equity  the  evidence  may 
have  to  be  clearer  and  more  satisfactory  than  is  ordinarily  required 
to  constitute  a  fair  preponderance  in  ordinary  actions  at  law.  The 
old  doctrine  seems  to  have  been  that  the  evidence  must  "satisfy  the 
conscience  of  the  chancellor,"  and,  further  than  that,  no  definite  rule 
could  be  laid  down.  It  has  frequently  been  said,  however,  that  if 
the  evidence  as  to  a  disputed  fact  is  equally  balanced,  or  if  it  does 
not  produce  a  just  and  rational  belief  of  its  existence  but  leaves 
the  mind  in  a  state  of  perplexity,  the  party  having  the  burden  or 
affirmative  as  to  such  fact  must  fail.^^'^  So,  it  has  been  said  that 
while  circumstantial  evidence  may  be  as  potent  in  equity  as  at  law, 
the  court  will  not  be  influenced  by  mere  circumstances  to  adopt  a 
conjectural  conclusion,  in  a  matter  susceptible  of  proof,  and  will  not 
indulge  in  presumptions  and  inferences  not  drawn  from  facts  directly 
proved.^^^  And  it  has  also  been  held  that  the  chancellor,  in  passing 
on  conflicting  proofs,  may,  and,  in  a  proper  case,  will  follow  the 
probabilities,  although  they  may  be  contrary  to  the  impressions  of 
witnesses  of  undoubted  integrity  of  purpose.^^^  There  are  cases  in 
which,  perhaps  because  of  the  old  rule  requiring  the  conscience  of 
the  chancellor  to  be  satisfied  as  well  as  for  the  reason  that  they  are 
easily  manufactured,  open  to  suspicion  or  the  like,  it  is  usually  said 
that  the  evidence  must  be  clear  and   convincing  or   satisfactor)'.^"** 

'"Hawes  v.  Brown,   75  Ala.  385;  Guigan  v.  Gaines,  71  Ark.  614,  77  S. 

Evans  v.  Winston,  74  Ala.  349;  Mar-  ^V.  52,  53,  54. 

lowe  V.  Benagh,  52  Ala.  112;   Bran-  '"' Orman  v.   Barnard,  5  Fla.   528. 

don  V.  Cabiness,  10  Ala.  155;  Goerke  See   also,    Nichols   v.    McCarthy,    53 

V.  Rodgers,    (Ark.)    86    S.   W.    837;  Conn.  299,  23  Atl.  93. 

Selby  V.  Geines,  12   111.  69;    Gee  v.  ^^  Salisbury  v.  Salisbury,  49  Mich. 

Gee,  32  Miss.  190;   Sterne  v.  Woods,  306,  13  N.  W.  602;  Lurch  v.  Holder, 

11  Mo.  638;  Rogers  v.  Traders'  Ins.  (N.  J.  Eq.)  27  Atl.  81. 

Co.,  6  Paige  (N.  Y.)  583;  Hargraves  ^°»  McGuigan    v.    Gaines,    71    Ark. 

V.    Miller,    16    Ohio    338;    Wilson    v.  614,  77  S.  W.  52;  Doane  v.  Dunham, 

Delarack,  3  Ohio  290.    See  also,  Mc-  64  Neb.  135,  89  N.  W.  640;   Rice  v. 


553  WEIGHT   AND   SUFFICIENCY.  [§    3216. 

Just  what  is  meant  by  this  is  not  entirely  clear,  but  it  apparently 
means  that  a  mere  slight  preponderance  of  evidence  not  clearly  or 
satisfactorily  establishing  the  disputed  fact  or  issue  is  insufficient. 
Cases  in  which  the  expression  in  question  is  used  are  mainly  cases 
of  mistake,  trust,  fraud,  or  the  like,  as,  for  instance  where  a  result- 
ing trust  is  sought  to  be  established  by  parol  evidence,  or  specific 
performance  or  cancellation  or  reformation  is  sought.  Yet,  on  the 
other  hand,  it  has  been  said  that  courts  of  equity  will  sometimes  act 
upon  circumstances  and  badges  of  fraud  that  might  be  deemed  in- 
sufficient to  justify  a  verdict  in  a  court  of  law.^^^  The  fact  that  a 
witness  is  interested  as  a  party  or  otherwise  does  not  necessarily 
prevent  a  decree  from  being  rendered  on  his  evidence.^^-  Indeed, 
it  has  been  said  that  the  very  fact  that  men  of  high  character  are 
interested  often  makes  their  testimony  more  weighty  as  showing 
their  attention  is  focussed  on  the  matter  in  controversy.^ ^^  But  it 
has  been  held  that  the  testimony  of  parties  who  attempt  to  impose 
on  a  court  of  equity  by  false  statements,  manufactured  accounts,  or 
the  like,  is  insufficient  and  should  be  given  no  weight. ^"^^  So,  cir- 
cumstances and  known  facts  may  sometimes  establish  the  truth  more 
clearly  than  the  oaths  of  the  parties  or  the  written  depositions.^"^ 
But  positive  testimony  has  been  held  entitled  to  more  weight  than 
negative   testimony    or    circumstances   merely   persuasive.^''*'      Doeu- 

Rigley,   7   Idaho   115,    61    Pac.    290;  inson,  5  De  G.  M.  &  G.  558,   25  L. 

Sallenger  v.  Perry,  130  N.  Car.  134,  J.  Ch.  598;  United  States  v.  Munroe, 

41  S.  E.  11;    Bruce  v.  Child,  11  N.  5  Mason  (U.  S.)  572,  577. 

Car.  372,  381;   Westbrook  v.  Harbe-  '''3  Greenleaf  Ev.,  §  254;   1  Story 

son,   2   McCord  Eq.    (S.   Car.)    112;  Eq.  Jur.,  §§  190-193.   See  also,  Ches- 

Layman  v.   Minneapolis  &c.  Co.,  60  terfield  v.  Janssen,  1  Atk.  301,  352; 

Minn.  136,  62  N.  W.  113;  Southard  v.  Fullagar  v.  Clark,  18  Ves.  481,  483. 

Curlej',  134  N.  Y.  148,  154,  31  N.  E.  '»=  Conger  v.  Cotton,  37  Ark.  286; 

330,  30  Am.  St.  642,  16  L.  R.  A.  561;  Montandon   v.   Deas,   14  Ala.   33,  4S 

Citizens'  Nat.  Bank  v.  Judy,  146  Ind.  Am,  Dec.  84. 

322,  346,  347,  43  N.  E.  259;   2  Pome-  '"' Goerke  v.  Rodgers,  (Ark.)  86  S. 

royEq.  Jur.,  §§  859,  1040.    See  also,  W.    837,    838.     See    also,    Peyton    v. 

Capelli  V.  Dondero,  123  Cal.  324,  55  Green,  1  Eq.  Cas.  Abr.  11;  Benson  v. 

Pac.    1057;    Bodwell    v.    Heaton,    40  Le  Roy,  1  Paige  (N.  Y.)  122. 

Kans.  36,  18  Pac.  901;  Givan  v.  Mas-  "'*  Atkinson  v.   Plumb,  45  W.  Va. 

terson,  152  Ind.  127,  51  N.  E.  237;  626,  32  S.  E.  229.   See  also,  Kenny  v. 

Whelen   v.   Osgoodby,   62   N.   J.   Eq.  Lembeck,   53   N.   J.   Eq.    20,  30   Atl. 

571,  50  Atl.  692;  Potter  v.  Potter,  27  525;  Hill  v.  Binney,  6  Ves.  738. 

Ohio  St.  84;  Fritzler  v.  Robinson,  '<0  '"^  Benter  v.  Patch,  7  Mackey   (D. 

Iowa   500,    31   N.   W.    61;    Simmons  C.)  590. 

Creek  Coal  Co.  v.  Doran.  142  IT.  S.  i»«  Kennedy    v.    Kennedy,    2    Ala. 

417,  12  Sup.  Ct.  239;  Bold  v.  Hutch-  571;  Walker  v.  Walker,  2  Atk.  98. 


§  3217.]  PROCEEDINGS  IX  EQUITY.  o5-i 

mentary  evidence  properly  submitted  at  the  hearing  by  stipulation  or 
otherwise  is  generally  to  be  considered  in  the  same  light  as  evi- 
dence taken  by  deposition."^  But,  as  already  shown,  admissions  of 
the  parties  are  often  given  greater  weight  and  effect  than  ordinary 
evidence,  and  are  usually  conclusive  when  made  in  judicio.^^*  Affi- 
davits for  preliminary  action  or  as  a  foundation  for  ulterior  pro- 
ceedings are  also  often  given  conclusive  effect  for  such  purpose,^^^  but 
not  usually  on  final  hearing.  Indeed,  ex  parte  affidavits  are  seldom 
received  and  considered  on  the  final  hearing,  and,  as  there  has  been 
no  opportunity  for  cross-examination  they  ought  not,  in  any  event, 
under  ordinary  circumstances,  when  contradicted,  to  be  given  the 
weight  of  evidence  taken  and  heard  in  the  usual  course. 

§  3217.  Objections  and  exceptions, — As  a  general  rule,  all  the 
evidence  offered  should  be  received  in  the  first  instance  in  order  to 
preserve  it  in  the  record,-***'  and  where  there  is  doubt  as  to  whether 
a  question  is  proper  the  witness  should  generally  be  required  to 
answer.^**^  Objections  should  be  made,  however,  when  the  testimony 
is  offered,  and  should  be  incorporated  in  the  record,  so  that  they  may 
be  passed  upon  later.^**-  Yet  it  has  been  held  proper  to  reserve 
until  the  hearing  objections  going  to  the  competency,^"^  or  relevancy 
.of  testimony,^*'*  The  objections  should  clearly  state  the  particular 
testimony  objected  to  and  the  ground  of  the  objection."**^     Objec- 

"^  Stone  v.  Welling,  14  Mich.  514.  537.     See  also,  Johnson  v.  Meyer,  54 

"^See    ante,    §    3193,    admissions.  Ark.  437,  16  S,  W.  121;   Williamson 

See  also,  Domville  v.  Solly,  2  Russ.  v.  Johnson,   5   N.   J.   Eq.   537;    Vol. 

372;    Gresley   Eq.    Ev.    459,    460;    3  II,  §§  1180-1185. 

Greenleaf  Ev.,  §  373.  '°'  Goelz  v.  Goelz,  157  111.  33,  41  N. 

'=^3  Greenleaf  Ev.,  §§  384,  385;   1  E.  756;  Kennedy  v.  Meredith,  3  Bibb 

Daniell  ,Ch.  Pr.    (5th  Am.  Ed.)   940.  (Ky.)  465;  Williams  v.  Vreeland,  30 

They   have  been   received   as   satis-  N.  J.  Eq.  576;  Williams  v.  Maitland, 

factory    proof    of    exhibits    at    the  36  N.  Car.  92. 

hearing.  ^^"^  Williams  v.  Vreeland,  30  N.  J. 

^'^Bilz    V.     Bilz,     37     Mich.     116;  Eq.  576;   Jones  v.  Spencer,  2  Tenn. 

Parisian  Comb  Co.  v.  Eschwege,  92  Ch.  776;    Diamond   Drill  &c.  Co.  v. 

Fed.  721;  Lloyd  v.  Pennie,  50  Fed.  4;  Kelly,  120  Fed.  282. 

Blease  v.  Garlington,  92  U.  S.  1.  ^  Freeny  v.  Freeny,  80  Md.  406,  31 

=°^  Whitehead    &c.    Co.    v.    O'Calla-  Atl.     304;     Hamilton     v.     Southern 

han,  130  Fed.  243.  Nevada  Gold  &c.  Min.  Co.,  13  Sawy. 

=«^  Williams  v.  Thomas,  3  N.  Mex.  (U.  S.)   113.  33  Fed.  562;   Ashmead 

324,   9   Pac.   356;    Maxim-Nordenfelt  v.    Colby,    26    Conn.    287;    Vol.    II, 

&c.  Co.  v.  Colt's  Patent  &c.  Co.,  103  §§  882,  883. 
Fed.  39;  De  Roux  v.  Girard,  90  Fed. 


I 


555 


OBJECTIONS    AXD    EXCEPTIONS. 


[§  3217. 


tions  are  generally  regarded  as  waived  unless  the  attention  of  the 
chancellor  is  called  to  them,-''°  and  will  not  be  considered  on  appeal.'"^ 
So  there  may  be  a  waiver  by  other  conduct  inconsistent  with  any  ob- 
jection ;2°*  and  a  cross-examination  with  knowledge  of  the  incom- 
petency of  the  witness  and  without  objection  has  been  held  to  be  a 
waiver.^"*  But  it  is  said  that  an  express  waiver  of  an  objection  must 
be  entered  on  the  record.^i*^  The  subject  of  objections  and  excep- 
tions where  there  has  been  a  reference  to  a  master  will  be  considered 
in  another  chapter. 


«•«  Babcock  v.  Carter,  117  Ala.  575, 
23  So.  487,  67  Am.  St.  193;  Seals  v. 
Robinson,  75  Ala.  363;  Brewer  v. 
Browne,  68  Ala.  210;  Skinner  v. 
Campbell,  44  Fla.  723,  33  So.  526; 
Clarke  v.  Saxon,  1  Hill  Eq.  (S.  Car.) 
69;  Van  Namee  v.  Groot,  40  Vt.  74. 

=»'Pinney  v.  Finney,  (Fla.)  35  So. 
95;  Ocala  Foundry  &c.  Works  v. 
Lester,  (Fla.)  38  So.  56,  64.  See 
also,  Hillier  v.  Farrell,  185  Mass. 
434,  70  N.  E.  424.  But  compare, 
Goelz  V.  Goelz,  157  111.  33,  41  N.  E. 
756.  As  elsewhere  shown,  the  admis- 
sion of  improper  evidence  is  often 
regarded  as  harmless,  within  limits, 


on  the  theory  that  the  chancellor,  in 
making  his  decree,  regarded  only 
the  proper  evidence. 

^^Kelsey  v.  Hobby,  16  Pet.  (U.  S.) 
269,  10  L.  Ed.  961.  See  also,  Bunnel 
V.  Stoddard,  2  Am.  L.  Rec.  145,  4 
Fed.  Cas.  No.  2135. 

^^See,  3  Greenleaf  Ev.,  §  369; 
United  States  v.  Hair  Pencils,  1 
Paine  (U.  S.)  400;  Charitable  Co.  v. 
Sutton,  2  Atk.  400;  Sutton  v.  Wilson, 
1  Vern.  254;  Flagg  v.  Mann,  2  Sumn. 
(U*S.)  486;  Vol.  II,  §  721. 

-"American  Saddle  Co.  v.  Hogg, 
Holmes  (U.  S.)  177.  1  Fed.  Cas.  No. 
316. 


CHAPTER  CLVII. 


REFERENCE   TO    MASTER. 


Sec.  Sec. 

3218.  Discretionary.  3227. 

3219.  In  what  cases.  3228. 

3220.  Hearing  on  bill  and  answer —  3229. 

Master    not    to    take    testi- 
mony. 3230. 

3221.  Issues  to  be  first  determined —  3231. 

Scope  of  order.  3232. 

3222.  Duty  of   parties  to   prosecute  3233. 

reference.  3234. 

3223.  Evidence  before  master.  3235. 

3224.  Objections  to  evidence. 

3225.  Taking    additional    testimony  3236. 

after  time  fixed. 

3226.  When  evidence  should   be  re- 

ported. 


Master's  report. 

Submitting  draft  of  report. 

Objections  and  exceptions  be- 
fore master. 

Irregularities  in  proceedings. 

Exceptions  to  report. 

Form  of  exceptions. 

Action  on  exceptions. 

Recommittal — Re-reference. 

Correction  of  report  —  Con- 
firmation. 

Weight  to  be  given  master's 
finding. 


§  3218.  Discretionary. — Whether  a  reference  to  a  master  shall  be 
made  is  a  matter  that  is  generally  left  very  largely  to  the  discretion 
of  the  court.  Wliere  a  reference  to  a  master  is  proper  it  is  generally 
within  the  power  of  the  court  in  its  discretion  either  to  order  a  refer- 
ence, even  without  consent  of  the  parties/  or  to  determine  the  matter 
without  a  reference. 2     In  the  absence  of  some  special  rule  to  that 


1  Williams  v.  Benton,  24  Cal.  424; 
Smith  V.  Rowe,  4  Cal.  6;  State  v. 
Orwig,  25  Iowa  280;  State  v.  Mcln- 
tyre,  53  Me.  214;  Nephi  Irr.  Co.  v. 
Jenkins,  8  Utah  369,  31  Pac.  986; 
Shiras  Eq.  Pr.  41.  See  also.  Bond  v. 
Welcomes,  61  Minn.  43,  63  N.  W.  3; 
Green  v.  Green,  50  S.  Car.  514,  27 
S.  E.  952,  62  Am.  St.  846;  Commer- 
cial Banks  v.  McAulifEe,  92  Wis.  242, 
66  N.  W.  110;  note  in  79  Am.  Dec. 
207. 

=  Levert     v.     Redwood,     9     Port. 


(Ala.)  79;  Bryan  v.  Morgan,  35  Ark. 
113;  Bussey  v.  Bussey,  71  Mich.  504, 
39  N.  W.  847;  Barnebee  v.  Beckley, 
43  Mich.  613,  5  N.  W.  976;  Goodrich 
V.  Parker,  1  Minn.  195,  exceptions; 
Powell  V.  Kane,  5  Paige  (N.  Y.)  265, 
impertinence;  Fortune  v.  Watkins, 
94  N.  Car.  304;  Goddard  v.  Leech, 
Wright  (Ohio)  476.  In  re  Weed,  163 
Pa.  St.  600,  30  Atl.  278;  Phillips's 
Appeal,  68  Pa.  St.  130;  Buchanan  v. 
Alwell,  8  Humph.  (Tenn.)  516;  New 
York  Cent.  Trust  Co.  v.  Madden,  17 


556 


557 


WHAT    REFEKIJED. 


[§    3219. 


effect  in  the  particular  jurisdiction  a  reference  is  not  etrictly  a  mat- 
ter of  right/  and  it  lias  been  held  that  it  should  not  be  made  on  the 
motion  of  a  party  as  of  course.*  A  party  is  entitled  to  the  judgment 
of  the  court  especially  upon  issues  of  law,  and  the  court  should  not 
abdicate  its  functions  by  referring  the  whole  cause  to  a  master  to 
try  and  determine  all  the  issues,^  although  it  may  do  so  where  the 
parties  consent.^  The  constitution  or  law  of  the  particular  jurisdic- 
tion may  also  prohibit  a  reference  to  a  master,  and  a  constitutional 
provision  that  "the  testimony  in  causes  in  equity  shall  be  taken  in 
like  manner  as  in  cases  at  law,"  has  been  held  to  have  that  effects 
But  in  the  same  jurisdiction  under  the  statute  a  compulsory  refer- 
ence may  now  be  ordered  in  cases  where  the  taking  of  a  long  account 
is  involved  either  in  law  or  equity.* 

§  3219.     In  what  cases. — Eeferences  are  most  often  made  in  cases 
of  accounting  or  where  it  becomes  necessary  to  investigate  and  take 


C.  C.  A.  236,  70  Fed.  451;  Kelley  v. 
Boettcher,  29  C.  C.  A.  14,  85  Fed.  55; 
Brown  v.  Grove,  25  C.  C.  A.  644,  80 
Fed.  564.  But  see,  St.  Colombe  v. 
United  States,  7  Pet.  (U.  S.)  625; 
French  v.  Gibbs,  105  111.  523. 

^  Manning  v.  Ludington,  6  Ohio 
Dec.  (Reprint)  620,  7  Am.  L.  Rec. 
117,  and  authorities  in  last  two 
notes,  supra. 

*  Barnes  v.  Haynes,  16  Gray 
(Mass.)  34;  Faitoute  v.  Haycock,  2 
N.  J.  Eq.  105;  Corning  v.  Baxter,  6 
Paige  (N.  Y.)  178;  Manning  v. 
Ludington,  6  Ohio  Dec.  (Reprint) 
620,  7  Am.  L.  Rec.  117. 

°  Early  Times  &c.  Co.  v.  Zeiger, 
(N.  Mex.)  66  Pac.  532;  Kimberly  v. 
Arms,  129  U.  S.  512,  9  Sup.  Ct.  355; 
Garinger  v.  Palmer,  61  C.  C.  A.  436, 
126  Fed.  906;  Walker  v.  Kinnare,  22 
C.  C.  A.  75,  76  Fed.  101.  But  see, 
Littlejohn  v.  Regents,  71  Wis.  437, 
37  N.  W.  346;  Jordan  v.  Warner's 
Estate,  107  Wis.  550,  83  N.  W.  946. 

"Kimberly  v.  Arms,  129  U.  S.  512, 
9  Sup.  Ct.  355;  Haggett  v.  Welsh,  1 
Sim.  134,  2  Eng.  Ch.  134.    See  also. 


Memphis  v.  Brown,  20  Wall.  (U.  S.) 
269. 

^  Brown   v.   Runals,    14    Wis.    693, 
697. 

^Winnebago  County  v.  Dodge 
County,  (Wis.)  106  N.  W.  255.  And 
in  most  jurisdictions  a  compulsory 
reference  may  be  made  in  a  proper 
case  in  equity.  See  Clarkson  v. 
Hoyt,  (Cal.)  36  Pac.  382;  Smith  v. 
Pollock,  2  Cal.  92;  Grim  v.  Norris, 
ly  Cal.  140,  79  Am.  Dec.  206;  Huston 
V.  Wadsworth,  5  Colo.  213;  Wilson 
V.  Union  Distilling  Co.,  (Colo.)  66 
Pac.  170;  Mackenzie  v.  Flannery,  90 
Ga.  590,  16  S.  E.  710;  Klutts  v.  Mc- 
Kenzie,  65  N.  Car.  102;  Galbraith  v. 
McCormick,  23  Kans.  706;  Creve 
Coeur  &c,  Co.  v.  Tamm,  138  Mo.  385, 
39  S.  W.  791;  Burt  v.  Harrah,  65 
Iowa  643;  St.  Paul  &c.  R.  Co.  v. 
Gardner,  19  Minn.  132,  18  Am.  R. 
334;  Camp  v.  Ingersoll,  86  N.  Y.  433; 
Green  v.  Green,  50  S.  Car.  514,  27 
S.  E.  952,  62  Am.  St.  846.  In  many 
of  these  cases  it  is  held  that  the  con- 
stitutional provision  as  to  right  of 
trial  by  jury  does  not  apply  to  pre- 
vent a  reference. 


§    3220.]  REFERENCE   TO    MASTER.  558 

an  account.  But  there  are  other  cases  in  which  a  reference  is  fre- 
quently made.  In  a  recent  text-book  it  is  said:  ''Wherever  it  is 
necessary,  in  the  progress  of  a  cause,  to  take  an  account,  or  to  investi- 
gate the  title  of  persons  to  property  affected  by  the  suit,  or  to  make 
any  other  inquiries  necessary  to  properly  inform  the  court  so  that 
it  may  be  in  a  position  to  determine  and  adjust  the  rights  of  the 
parties  in  interest ;  or  where  some  special  ministerial  act  is  to  be  done, 
as  to  sell  property;  and  in  other  similar  cases, — the  court  will  refer 
the  particular  matter  to  a  master  in  chancery,  who  is  an  officer  of  the 
court,  and  whose  duty  it  is  to  thereupon  comply  with  the  order  of  the 
court,  and  report  to  the  court  the  facts  of  such  compliance.'"'  A 
more  definite,  and  at  the  same  time  more  comprehensive,  statement 
is  as  follows :  "The  matters  which  are  ordinarily  referred  to  masters 
in  chancery  are  inquiries,  as  to  whether  pleadings  or  other  proceed- 
ings in  a  suit  in  equity  contain  impertinence  or  scandal;  as  to  who 
are  the  heirs,  next  of  kin,  creditors,  or  members  of  a  particular  class 
of  legatees  of  a  person  whose  estate  is  in  the  hands  of  the  court  for 
distribution;  as  to  whether  the  title  to  real  estate  is  good;  and  as  to 
the  state  of  the  law  of  a  foreign  country;  as  to  whether  one  of  two 
books  or  other  publications  is  pirated  from  the  other;  or  as  to  the 
amount  of  damages  suffered  by  the  granting  or  withholding  of  an 
injunction;  the  taking  of  accounts;  the  computation  of  interest;  the 
settlement  of  conveyances,  and  other  deeds;  the  selling  of  property; 
the  appointment  of  trustees,  receivers  and  guardians;  and  the  super- 
intendence of  the  performance  of  their  duties  by  receivers."^" 

§  3220.  Hearing  on  bill  and  answer— Master  not  to  take  testi- 
mony.— As  already  intimated  it  is  usually  within  the  discretion  of  the 
court  after  the  issues  are  formed  to  order  a  reference  to  take  testi- 
mony.^^ But  where  the  complainant  has  the  cause  set  down  for 
hearing  upon  the  bill  and  answer,  and  the  answer  is  to  be  taken  as 
true,  according  to  the  rule  elsewhere  stated,  it  has  been  held  that  the 
facts  are  to  be  ascertained  from  the  bill  and  answer  alone  and  that 
the  court  should  not  refer  the  cause  to  a  master  to  take  testimony 
and  report.^ - 

'Shipman  Eq.  PI.  109.     See  also,  S.  E.  818;  Farmers'  Mut.  Ins.  Assoc. 

Beach  Mod.  Eq.  Pr.,  §§  672,  680,  et  v.  Berry,  53  S.  Car.  129,  31  S.  E.  53; 

seq.;  Adams  Eq.  (8th  Ed.)  378,  379.  McSween    v.    McCown,    21    S.    Car. 

^"Foster  Fed.  Pr.,  §  307.  371;  Bank  v.  Fenwell,  55  S.  Car.  379, 

"Grob  v.   Cushman,   45   111.   119;  33  S.  E.  485. 
Davis  v.   Davis,   30   111.  180;    Barn-         '=  Irvine  v.  Eptein,    (Fla.)    33  So. 

well  V.  Marion,  58   S.   Car.  459,   36  1003;  Byrd  v.  Belding,  18  Ark.  118; 


559 


SCOPE  OF  ORDER, 


[§  3221. 


§  3221.  Issues  to  be  first  determined— Scope  of  order.— As  a  gen- 
eral rule  the  main  issues  as  to  the  general  rights  of  tlie  parties  should 
first  be  made  up  and  determined/^  so  far  at  least  as  to  make  it  ap- 
pear that  a  reference  would  be  proper  and  to  settle  as  far  as  may 
be  the  questions  of  law,  and  the  order  should  generally  give  directions 
or  instructions  as  to  the  principles  by  which  the  master  is  to  be 
guided  and  the  scope  of  the  matter  referred.^*  A  master  derives  his 
authority  from  the  order  of  reference  and  cannot,  ordinarily,  extend 
his  inquiry  beyond  the  matters  expressly  referred.^  ^  But  the  matter 
of  practice  before  the  master  is  now  regulated  very  largely  in  the 
federal  courts  by  a  general  equity  rule  giving  the  master  authority 
to  regulate  the  proceedings  before  him  to  a  great  extent."'  Tlic  order 
should  not  be  more  extensive  than  the  scope  of  the  pleadings  and 
the  master  cannot  ordinarily  go  beyond  their  scope ;"  nor  can  he  go 


Franklin  v.  Meyer,  36  Ark.  96; 
Hicks  V.  Hogan,  36  Ark.  298;  Owens 
V.  Rliodes,  10  Fla.  319;  Egerton  v. 
Reilly,  1  Gill  &  J.  (Md.)  385;  Jones 
V.  Douglass,  1  Tenn.  Ch.  357,  360; 
Carey  v.  Williams,  1  Lea  (Tenn.) 
51;  Baltimore  &c.  Co.  v.  Williams,  94 
Va.  422,  26  S.  E.  841;  Neely  v.  Jones, 
16  W.  Va.  625,  37  Am.  R.  794; 
Walker  v.  Kinnare,  22  C.  C.  A.  75, 
76  Fed.  101;  Ward  v.  Paducah  &c.  R. 
Co.,  4  Fed.  862;  Columbian  &c.  Co. 
V.  Mercantile  Trust  &c.  Co.,  53  C.  C. 
A.  33,  113  Fed.  23.  But  a  reference 
has  been  held  proper  where  the 
pleadings  show  a  necessity  therefor. 
Briggs  V.  Neal,  56  C.  C.  A.  572,  120 
Fed.  224.  And  see  as  to  practice  in 
Vermont  on  foreclosure  of  mortgage. 
Hathaway  v.  Hagan,  64  Vt.  135,  24 
Atl.  131.  See  generally  Adams  Eq. 
(8th  ed.)  380. 

"Franklin  v.  Meyer,  36  Ark.  96; 
Owens  v.  Rhodes,  10  Fla.  319;  Kay 
V.  Fowler,  7  T.  B.  Mon.  (Ky.)  593; 
Sharp  v.  Morrow,  6  T.  B.  Mon.  (Ky.) 
300;  Hudson  v.  Trenton  &c.  Co.,  16 
N.  J.  Eq.  475;  Remsen  v.  Remsen,  2 
Johns.  Ch.  (N.  Y.)  495;  Carey  v. 
Williams,  1  Lea  (Tenn.)  51.  As  to 
the   old   English  practice   requiring 


"a  state  of  facts"  see  2  Daniell  Ch. 
Pr.  (5th  ed.)  1199,  1200,  1201;  2 
Beach  Mod.  Eq.  Pr.,  §  688.  See  also 
Adams  Eq.  (8th  ed.)  382,  383. 

"Henderson  v.  Huey,  45  Ala.  275; 
White  V.  Reviere,  57  Ga.  386;  Howe 
V.  Russel,  36  Me.  115;  Winn  v.  Al- 
bert, 2  Md.  Ch.  169;  Stonington  Sav. 
Bank  v.  Davis,  15  N.  J.  Eq.  30; 
Jones  v.  Massey,  9  S.  Car.  376; 
Maury  v.  Lewis,  10  Yerg.  (Tenn.) 
115;  Ballard  v.  McMillan,  5  Tex. 
Civ.  App.  679,  25  S.  W.  327;  Bate  &c. 
Co.  V.  Gillette,  28  Fed.  673;  Taylor 
V.  Robertson,  27  Fed.  537;  Farmers' 
&c.  Trust  Co.  v.  Central  Railroad, 
2  Fed.  656;  Gordon  v.  Hobart,  2 
Story  (U.  S.)  243. 

'"  United  States  Eq.  Rule  77.  Per- 
due V.  Brooks,  95  Ala.  611,  11  So. 
282. 

'■  Levert  V.  Redwood,  9  Port.  (Ala.) 
79;  Waterman  v.  Curtis,  26  Conn. 
241;  Mackenzie  v.  Flannery,  90 
Ga.  590,  16  S.  E.  710;  Potter  v. 
Howe,  141  Mass.  357,  6  N.  E.  233; 
Newton  Rubber  Works  v.  De  Las 
Cases,  182  Mass.  436,  65  N.  E.  816; 
Consequa  v.  Fanning,  3  Johns.  Ch. 
(N.  Y.)  587;  Caldwell  v.  Leiber.  7 
Paige   (N.  Y.)  483;  but  see.  Nashua 


§§  3222,  3223.]  eeference  to  master. 


iGO 


behind  the  order,  which  must  be  accepted  by  him  as  conclusive  of  all 
matters  covered  by  it.^^ 

§  3222.     Duty   of   parties   to   prosecute   reference. — The   United 

States  equity  rules  provide  that,  whenever  a  reference  is  made,  the 
party  at  whose  instance  or  for  whose  benefit  it  was  directed  shall 
cause  the  same  to  be  presented  to  a  master  for  a  hearing  on  or  before 
the  rule-day  next  succeeding  the  date  of  the  order  for  a  reference.  If 
he  fails  to  do  so  the  adverse  party  may  forthwith  cause  proceedings 
to  be  had  before  the  master  at  the  costs  of  the  party  who  procured 
the  reference.^''  It  is  also  held  in  other  jurisdictions  to  be  the  duty 
of  the  party  obtaining  the  reference  to  prosecute  it  in  the  first  in- 
stance,^''  although  under  the  old  practice  it  was  usually  held  to  rest 
primarily  upon  the  plaintiff.^^  It  is  the  duty  of  the  master  to  as- 
sign a  time  and  place  for  the  proceedings  before  him  and  due  notice 
thereof  must  be  given.^^ 

§  3223.  Evidence  before  master. — In  the  absence  of  any  restric- 
tion  in  the  order  the  master  usually  has  power  to  receive  legitimate 
evidence  for  the  proper  determination  of  the  matter  referred,^^  and 
if  it  can  be  ascertained  only  by  evidence  he  may  do  so,  although  the 
order  does  not  particularly  empower  him  to  take  testimony.^*  The 
evidence  may  generally  be  documentary  or  by  depositions,  or  viva 
voce."     But  if  the  testimony  is  taken  orally  it  should  be  reduced 

&c.  R.  Co.  V.  Boston  &c.  R.  Co.,  49  Bernie   v.    Vandever,    16    Ark.    616; 

Fed.  774.  Kerosene  Lamp  &c.  Co.  v.  Fisher,  1 

>«  Izard  v.  Bodine,  9  N.  J.  Eq.  309;  led.  91;  Ballard  v.  Lippman,  32  Fla. 

Mulford  V.  Williams,  8  N.  J.  Eq.  536;  481,  14  So.  154;  Wardlaw  v.  Erskine, 

Terry  v.  Robbins,  122  Fed.  725.    See  21  S.  Car.  359;  Hubbard  v.  Camper- 

also,  Deitch  v.  Staub,  53  C.  C.  A.  137,  down  Mills,  25  S.  Car.  496,  1  S.  E.  5; 

115    Fed.    309;    Gass   v.    Stinson,    2  Moore  v.  Bruce,  85  Va.  139,  7  S.  E. 

bumn.  (U.  S.)  605;  Baurle  v.  Long,  195;  King  v.  Bryant,  3  M.  &  C.  191; 

165  111.  340,  46  N.  E.  227;    Ellis  v.  1  Newland  Ch.  Pr.  324. 

Ellis,  (Tenn.  Ch.  App.)  62  S.  W.  51;  ==  Goodwin  v.  McGehee,  15  Ala.  232. 

Smith    V.    Swain,    7    Rich.    Eq.    (S.  =*  Story  v.  Livingston,  13  Pet.   (U. 

Car.)    112.  S.)   359. 

>"  United  States  Eq.  Rule  74.  ''  United  States  Eq.  Rule  77.    See 

^"Camden   &c.   R.   Co.   v.   Stewart,  also,  Grob  v.  Cushman,  45  111.  119; 

19   N.   J.   Eq.   343;    Quackenbush  v.  Bennett  Office  Master,  6;  McDougald 

Leonard,  10  Paige   (N.  Y.)   131.  v.  Dougherty,  11  Ga.  570;  Taylor  v. 

21  See,  2  Daniell  Ch.  Pr.  792.  Young,  2  Bush   (Ky.)   428;   Story  v. 

"U.    S.    Eq.    Rule    75.     See    also,  Livingston,  13  Pet.   (U.  S.)   359,  10 


561 


OBJECTION    TO    EVIDENCE. 


[§    3224. 


to  writing,^®  and,  indeed,  all  the  evidence  should  usually  be  in  the 
record.  It  is  also  sometimes  expressly  provided,  as  in  the  United 
States  equity  rules,  that  all  affidavits,  depositions  and  documents 
previously  read  or  used  in  the  court  may  be  used  before  the  master.^^ 
In  general,  the  ordinary  rules  of  evidence  obtain  before  the  master,^* 
but,  he  should,  perhaps,  incline  toward  admitting  rather  tlian  ex- 
cluding evidence  in  case  of  doubt.^^  The  master  may  be,  and  gener- 
ally is,  authorized  to  compel  the  production  of  books  and  papers,^" 
in  a  proper  case.  And  he  may  take  evidence  as  to  matters  of  detail 
and  facts  necessary  or  proper  to  the  application  of  the  principles  of 
the  decree.^ ^ 

§  3224.  Objections  to  evidence. — The  master  has  power  and  au- 
thority to  rule  on  objections  to  the  evidence,^ ^  at  least  in  the  first 
instance.  But,  ordinarily,  unless  the  evidence  is  clearly  inadmissible 
he  should  receive  it  subject  to  the  objections,  so  that  it  may  be 
brought  into  the  record  and  the  matter  be  passed  on  by  the  court 
and  the  evidence  be  considered  without  a  re-reference  if  tlie  court 
should  deem  it  admissible.^^    An  objection  should,  however,  be  made 


L.  Ed.  200;  Foote  v.  Silsby,  3 
Blatchf.  (U.  S.)  507,  9  Fed.  Cases 
No.  4920;  Gresley  Eq.  Ev.  503. 

='Brockman  v.  Aulger,  12  111.  277; 
Taylor  v.  Cawthorne,  17  N.  Car.  221. 

"  United  States  Eq.  Rule  80. 

=«2  Barbour  Ch.  Pr.  (2nd.  ed.) 
493.  See  also,  Smith  v.  Althus,  11 
Ves.  564;  Gresley  Eq.  Ev.  503.  As 
to  examination  of  parties  by  master, 
see,  Hollister  v.  Barkley,  11  N.  H. 
501;  Jackson  v.  Jackson,  3  N.  J.  Eq. 
96;  McDougald  v.  Dougherty,  11  Ga. 
570;  Winter  v.  Wheeler,  7  B.  Mon. 
(Ky.)  25. 

=^  Where  testimony  is  taken  be- 
fore an  examiner  for  use  on  the 
trial,  and  there  is  doubt  as  to  the 
relevancy  or  propriety  of  a  question 
asked  on  cross-examination,  the  wit- 
ness should  generally  be  required 
to  answer.  Whitehead  &  Hoag  Co. 
V.  O'Callahan,  130  Fed.  243.  See 
also,  Brown  v.  Worster,  113  Fed.  20; 
Kansas  L.  &  T.  Co.  v.  Sedalia  Elec. 
R.  &c.  Co.,  108  Fed.  702.    It  is  gener- 

VoL.  4  Eeliott  Ev.— 36 


ally  better  to  receive  the  evidence, 
subject  to  objections,  so  that  the 
court  may  pass  upon  it  afterwards. 

^"Brockman  v.  Aulger,  12  111.  277; 
Hallett  V.  Hallett,  2  Paige  (N.  Y.) 
432;  Hart  v.  Ten  Eyck.  2  Johns.  Ch. 
(N.  Y.)  513;  Goss  Printing-Press  Co. 
v.  Scott,  119  Fed.  941;  United  States 
Eq.  Rule  77;  but  see,  Cartee  v. 
Spence,  24  S.  Car.  550. 

=1  Franklin  v.  Meyer,  36  Ark.  96, 
109;  Atwood  v.  Shenandoah  Val.  R. 
Co.,  85  Va.  966,  9  S.  E.  748. 

'=Ellwood  V.  Walter,  103  111.  App. 
219;  Kohlmeyer  v.  Kohlmeyer,  6 
Pa.  Co.  Ct.  609;  O'Malley  v.  O'Mal- 
ley,  10  Wkly.  Notes  Cas.  (Pa.)  32; 
Wooster  v.  Gumbirnner,  20  Fed.  167. 
birnner,  20  Fed.  167. 

=' Kansas  L.  &  T.  Co.  v.  Sedalia 
Elec.  R.  &c.  Co.,  108  Fed.  702.  See 
also,  Ellwood  v.  Walter,  103  111.  App. 
219;  Hann  v.  Barnegat  &c.  Imp.  Co., 
(N.  J.  Eq.)  2  Atl.  928;  Kohlmeyer 
V.  Kohlmeyer,  6  Pa.  Co.  Ct.  609. 


§  3224.] 


REFEREXCE   TO    MASTER. 


562 


when  the  evidence  is  offered,  and  an  exception  should  be  taken.^* 
This  is  the  safer  course  and  is  generally  required.  In  some  juris- 
dictions it  is  the  practice  on  objections  to  evidence,  or  at  least  when 
the  master  excludes  evidence,  to  bring  the  matter  at  once  before  the 
chancellor  for  his  ruling  or  direction  ;3^  but,  as  already  shown,  it  is 
generally  better  to  admit  the  evidence,  with  the  objection,  in  case 
of  doubt,  and  the  practice  of  interrupting  the  proceedings  and  re- 
ferring such  matters  to  the  chancellor,  as  each  question  arises,  is  not 
usually  looked  upon  with  favor  and  has  often  been  discountenanced.^'^ 
The  manner  of  objecting  and  excepting  to  the  master's  report,  or 
otherwise  attacking  it,  will  be  considered  in  a  subsequent  section. 


^*  Taylor  v.  Kilgore,  33  Ala.  214; 
Whaleu  V.  Stephens,  193  111.  121,  61 
N.  E.  921;  Williams  v.  Thomas,  3 
N.  Mex.  324,  9  Pac.  356;  Pratt  v. 
Adams,  7  Paige  (N.  Y.)  615;  Read 
V.  Winston,  4  Hen.  &  Mun.  (Va.) 
450;  Troy  Iron  &e.  Factory  v.  Corn- 
ing, 6  Blatchf.  (U.  S.)  328,  24  Fed. 
Cas.  No.  14196.  See,  Marra  v.  Bige- 
low,  180  Mass.  48,  61  N.  E.  275. 

^  Dickinson  v.  Torrey,  91  111.  App. 
297;  Schwarz  v.  Sears,  Walk. 
(Mich.)   19. 

3«Rusling  V.  Bray,  37  N.  J.  Eq. 
174;  Dotterer  v.  Saxton,  1  Wkly. 
Notes  Cas.  (Pa.)  218;  Hoe  v.  Scott, 
87  Fed.  220;  Union  &c.  Refinery  v. 
Mathiesson,  3  Cliff.  146,  24  Fed.  Cas. 
No.  14398;  Welling  v.  LaBau,  23 
Blatchf.  (U.  S.)  305,  32  Fed.  293; 
Lull  V.  Clark,  20  Fed.  454.  See  also, 
Collins  V.  Jackson,  43  Mich.  558,  561, 
5  N.  W.  1052.  Speaking  of  this  prac- 
tice, in  a  recent  case,  the  court  says: 
"This  does  not  seem  to  me  to  be  in 
accordance  with  the  precedent  or 
proper  practice.  The  court  appoints 
the  master  with  special  reference 
to  his  fitness  to  perform  the  duties 
imposed  upon  him.  He  is  the  court's 
representative,  and  it  is  his  duty  to 
pass  upon  all  the  questions  of  pro- 
cedure  as   they   come    before    him. 


His  action  is  subject  to  review  of 
tue  court,  but  it  must  be  only  when 
he  has  concluded  his  labors,  and  the 
court  has  before  it  all  the  data  upon 
which  his  conclusions  are  founded. 
The  duty  of  the  master  is  to  hear 
the  parties  fully,  'directing  the  mode 
in  which  the  matters  requiring  evi- 
dence shall  be  proved  before  him,'  as 
provided  for  in  the  seventy-seventh 
rule  in  equity.  It  is  necessary  that 
he  should  be  given  the  power  to 
avoid  delays  and  confusion,  and  to 
relieve  the  court  of  the  necessity 
of  passing  upon  the  materiality  of 
every  disputed  question  as  it  may 
arise  in  the  progress  of  the  hearing. 
Errors  made  by  the  master  can  be 
corrected  upon  the  coming  in  of  his 
report  upon  exceptions  properly 
taken.  Upon  the  coming  in  of  the  re- 
port the  parties  can  file  their  excep- 
tions founded  upon  previous  objec- 
tions and  have  the  court  pass  upon 
their  validity.  It  would  be  pro- 
ductive of  interminable  delay  and 
much  vexation  if  all  the  disputed 
questions  upon  a  hearing  before  the 
master  should,  as  they  arise,  be 
brought  before  the  court  for  revis- 
ion and  approval."  Hoe  v.  Scott,  87 
Fed.  220.  221. 


563  TAKING   .UJDITIONAL   TESTIMONY.      [§§    3225,    3226, 

§  3225.  Taking  additional  testimony  after  time  fixed. — It  is  usu- 
ally left  to  the  master  to  fix  a  reasonable  time  for  taking  and  closing 
the  testimony  and  he  ought  not  to  open  the  case  for  further  proof 
after  that  time  without  special  cause."  But  Die  master  usually  has 
discretionary  power  to  reopen  the  case  for  further  evidence,^^  at  least 
up  to  the  time  when  the  draft  of  his  report  has  been  submitted  to 
counsel,^"  and,  in  exceptional  cases  even  up  to  the  time  his  report  is 
finally  settled."'^  But  after  the  report  is  filed  it  is  for  the  court  to 
determine  whether  the  matter  shall  be  again  referred  to  a  master." 
If  the  time  for  closing  testimony  has  been  fixed  by  agreement  of  the 
parties,  it  is  said  to  be  discretionary  with  the  master  as  to  whether 
he  will  take  testimony  after  the  expiration  of  such  time.'*^  And  it 
has  been  held  that  even  when  the  time  has  been  fixed  by  the  court, 
the  parties  may  waive  such  limitation  as  to  time  and  continue  to 
take  testimony  thereafter.*^  The  rule  forbidding  a  re-examination 
of  a  witness,  under  ordinary  circumstances,  after  his  examination 
has  once  been  closed,  applies  to  proceedings  before  a  master,  and  such 
a  re-examination  should  not  be  allowed  unless  an  order  is  obtained 
therefor.** 

§  3226.  When  evidence  should  be  reported. — As  a  general  rule, 
in  the  absence  of  an  order  to  that  effect,  the  master  is  not  to  report 
the  evidence,  but  it  is  within  the  discretion  of  the  court  to  order  the 
master  to  report  the  evidence  before  him.*^  If  not  so  ordered  the 
master  is  not  required,  in  the  absence  of  any  rule  or  statute  to  that 

•■"  Remsen  v.  Remsen,  2  Johns.  Cii.  "  National  &c.  Co.  v.   Dayton  &c. 

(N.  Y.)  495.  Co.,  91  Fed.  822. 

»« Oliver   v.    Wilhite,    201    111.    552,  «  Messinger's  Appeal,   (Pa.)  1  Atl. 

66  N.  E.  837;  Richardson  v.  Wright,  260. 

58  Vt.  367,  5  Atl.  287.  ''  Harding  v.  Harding,  79  HI.  App. 

^ Tyler  v.  Simmons,  6  Paige   (N.  590;   Hoofstitler  v.  Hoofstitler,  172 

Y.)  127;  Burgess  v.  Wilkinson,  7  R.  Pa.  St.  575,  33  Atl.  753. 

I.  31;  Central  Trust  Co.  v.  Marietta,  "  Remsen  v.  Remsen,  2  Johns.  Ch. 

&c.    R.    Co.,    15    Fed.    41;    Piper    v.  (N.  Y.)  495;  Pearson  v.  Darrington, 

Brown,  Holmes  196,  19  Fed.  Cas.  No.  32    Ala.     227.      See    also,     Nece    v. 

11181;  Whiteside  v.  Pulliam,  25  HI.  Pruden.  8  Phila.  (Pa.)  350. 

285.  "  Bowers  v.  Cutler,  165  Mass.  441, 

^"Pattison  v.  HuU,  9  Cow.  (N.  Y.)  43  N.  B.  188;   Lovejoy  v.  Churchill, 

747;  Atwood  v.  Shenandoah  Val.  R.  29  Vt.  151.   See  also,  Gleason  &c.  Co. 

Co.,  85  Va.  966,  9  S.  E.  748;  Central  v.  Hoffman,  168  HI.  25,  48  N.  E.  148; 

Trust  Co.   v.  Richmond  &c.   R.  Co.,  Freeland  v.  Wright,  154  Mass.  492, 

69  Fed.  761.  28  N.  E.  678;   Arnold  v.  Slaughter, 

36  W.  Va.  589. 


§  3227.] 


REFEREXCK    TO    MASTEK. 


564 


effect,  to  report  all  the  evidence;*"  but  when  properly  requested  by 
a  party  as  the  basis  for  an  exception,  the  master  must  report  so 
much  of  the  evidence  as  relates  thereto.*^  This  is  generally  neces- 
sary in  order  to  obtain  a  review  of  the  master's  findings  as  to  such 
matter.^*  But,  as  already  intimated,  where  a  cause  is  heard  before 
a  master  under  a  rule  directing  him  to  hear  the  parties  and  report 
his  findings  of  fact  and  law  to  the  court,  the  master  is  not  required 
to  report  the  evidence,  in  the  absence  of  a  request  before  or  during 
the  hearing/^ 

§  3227.  Master's  report. — It  is  usually  the  duty  of  the  master  to 
make  a  general  report  embracing  the  whole  matter  referred  to  him 
by  the  particular  order  or  decree.^*^  But,  as  already  shown,  it  is 
not,  ordinarily,  within  his  province  to  determine  the  entire  case 
including  both  principles  of  law  and  all  the  issues  of  fact  and  thus 
usurping  the  functions  of  the  court,  and  there  are  cases  in  which  he 
may  make  a  separate  report  as  to  particular  matters  requiring  the 
immediate  action  of  the  court.  Upon  this  general  subject  it  is  said 
by  Mr.  Adams  :=*^     "When  the  master  has  disposed  of  all  objections, 


^'Vaughan  v.  Smith,  69  Ala.  92 
Mahone  v.  Williams,  39  Ala.  202 
Kirkman  v.  Vanlier,  7  Ala.  217 
Goodman  v.  Jones,  26  Conn.  264 
Prince  v.  Cutler,  69  111.  267;  Sim- 
mons v.  Jacobs,  52  Me.  147;  Bailey 
V.  Myrick,  52  Me.  132;  Hemiup,  Mat- 
ter of,  3  Paige  (N.  Y.)  305;  Richie 
V.  Levy,  69  Tex.  133,  6  S.  W.  685; 
Mott  v.  Harrington,  15  Vt.  185;  Her- 
rick  V.  Belknap,  27  Vt.  673;  Enright 
V.  Amsden,  70  Vt.  183,  40  Atl.  37; 
Garner  v.  Beaty,  7  J.  J.  Marsh. 
(Ky.)  223;  Sibert  v.  Kelly,  5  J.  J. 
Marsh.  (Ky.)  81;  Faucett  v.  Man- 
gum,  5  Ired.  Eq.  (N.  Car.)  53,  49 
Am.  Dec.  432;  Pilkington  v.  Gotten, 
2  Jones  Eq.  (N.  Car.)  238;  Mitchell 
V.  Walker,  2  Ired.  Eq.  (N.  Car.) 
621.  See  also,  McKinney  v.  Pierce, 
5  Ind.  422;  Parker  v.  Nickerson,  137 
Mass.  487. 

"  Heffron  v.  Gore,  40  111.  App.  257; 
Huling  V.  Farwell,  33  111.  App.  238; 
East  Tennessee  Land  Co.  v.  Leeson, 
183  Mass.  37,  66  N.  E.  427;   Safford 


v.  Old  Colony  R.  Co.,  168  Mass,  492, 
47  N.  E.  417;  Johnson  v.  Lewis,  2 
Strobh.  Eq.  (S.  Car.)  157;  Donnell 
v.  Columbian  Ins.  Co.,  2  Sumn.  (U. 
S.)  366,  7  Fed.  Cas.  No.  3987; 
Greene  v.  Bishop,  1  Cliff.  (U.  S.) 
186,  10  Fed.  Cas.  No.  5763.  See 
also,  Warren  v.  Lawson,  117  Ala. 
339,  23  So.  65;  Sutterfleld  v.  Ma- 
gowan,  12  S.  Dak.  139,  80  N.  W.  180; 
Ward  V.  Ward,  40  W.  Va.  611,  21  S. 
E.  746,  52  Am.  St.  911. 

*^  Arter  v.  Chapman,  4  Ohio  Dec. 
(Reprint)  294,  1  Clev.  L.  R.  226; 
Williams  v.  Wager,  64  Vt.  326,  24 
Atl.  765;  Sheffield  &c.  Coal  &c.  Co. 
v.  Gordon,  151  U.  S.  285,  14  Sup.  Ct. 
343. 

^^  Moore  v.  Dick,  (Mass.)  72  N.  E. 
967.  See  also,  Parker  v.  Nickerson, 
137  Mass.  487. 

^0  2  Danlell  Ch.  Pr.  (5th  ed.)  1294; 
Adams  Eq.  (8th  ed.)  *385. 

"  Adams  Eq.  *384,  ="385.  See  also, 
2  Beach  Mod.  Eq.  Pr.  694. 


565  master's  report,  [§  322T. 

and  come  to  a  conclusion  on  the  matters  referred,  he  settles  and 
signs  his  report,  and  such  report  is  then  filed.  The  ordinary  mode 
of  framing  a  report  is  to  refer  separately  to  each  of  the  directions  in 
the  decree,  and  then,  with  respect  to  each  direction,  first  to  mention 
on  what  evidence  the  master  has  proceeded,"  and  then  to  state  the 
conclusion  at  which  he  has  arrived.  In  stating  his  conclusion,  he 
should  so  far  detail  the  facts  which  warrant  it  as  may  enable  the 
court  to  judge  of  its  correctness ;"  and  it  is  frequently  advantageous, 
though  not  necessary,  that  he  should  also  state  the  reasons  which 
have  induced  his  decision.^*  But  he  must  not  omit  the  conclusion 
itself,  or  state  evidence,  or  circumstances  which  are  presumptive  evi- 
dence, without  finding  whether  they  amount  to  a  satisfactory  proof.^-^ 
And  if  liberty  be  given,  as  it  frequently  is,  to  state  special  circum- 
stances, he  should  state,  not  the  evidence,  but  the  facts  proved,  as  on 
a  special  verdict  at  law.^^  If  any  of  the  inquiries  directed  by  the 
decree  are  such  as  cannot  conveniently  be  delayed  until  the  general 
report,  the  master  may  make  a  separate  report,  which  is  prepared,, 
disputed  and  confirmed  in  the  same  manner  as  a  general  one;  the 
only  difference  being  that  when  it  is  intended  to  act  on  such  a  report,, 
the  cause  is  not  set  down  for  further  directions,  but  a  petition  is 
presented  praying  such  directions  as  are  consequent  on  the  separate 
report.  Subject  to  this  right  of  making  separate  reports  the  rule 
is,  that  a  master's  report  must  dispose  of  all  matters  referred,  either 
by  actual  findings  on  such  section  of  the  degree,  or  by  pointing  out 
what  matters  of  reference  have  been  waived,  and  what  has  been 
disposed  of  by  separate  reports;  and  that  the  omission  of  any  such 

"See,  Grant,  In  re.,  10  Sim.  573;  143;  Lawrence  v.  Lawrence,  3  Paige 

Meux  V.   Bell,   1   Hare   73,   93.    See  (N.  Y.)    267. 

also,  Agnew  v.  "Whitney,  11   Phila.  ^^  Lee  v.  Willock,  6  Ves.  605;  Meux 

(Pa.)   298.  V.  Bell,  1  Hare  73,  91;  Champernown 

^5  See,  Nims  v.  Nims,  20  Fla.  204;  v.    Scott,    4    Mad.    209;    Johnson    v. 

Gage  v.  Arndt,  121  111.  491,  13  N.  E.  Sanford,    13    Conn,    461.     See    also, 

138;     Green    v.    Lanier,     5    Heisk.  Pilkington   v.   Gotten,    2   Jones   Eq. 

(Tenn.)    662;    Brainerd   v,   Arnold,  (N,   Car.)    238;    Board   of   Trustees 

27  Conn,  617;  Van  Slyke  v.  Hyatt,  &c.  v.  Huston,  12  Ind.  276;   Roberts 

46  N.  Y.  259.  v.  Barker,  63  N.  H.  332. 

''*See,  Frazier  v.  Swain,  36  N.  J.  ^"Marlborough   v.   Wheat,   1   Atk. 

Eq.   156;    but  compare,   Jackson   v.  454.   See  also,  Hemiup,  Matter  of,  3 

Jackson,  3  N.  J.  Eq,  96;  Lundell  v.  Paige     (N,    Y.)     305;     Goodman    v. 

Cheney,  50  Minn.  470,  52  N.  W,  918;  Jones,  26  Conn.  264;   Bailey  v.  My- 

Herrick    v.    Belknap,    27    Vt.    673;  rick,  52  Me.  132;   State  v.  Peterson, 

Evans  v.  Evans,  2  Coldw.    (Tenn.)  142  Mo.  526,  39  S.  W.  453. 


§§  3228,  3229.]  reference  to  master,  5GG 

matters,  or  the  introduction  of  any  matters  not  referred  to  him,  will 
render  his  report  erroneous.''^'  But  this  last  statement  is,  perhaps 
a  little  too  broad,  as  immaterial  omissions  will  not  necessarily  vitiate 
the  report,^^  nor  will  the  inclusion  of  unnecessary  matter  neces- 
sarily vitiate  it  in  all  cases. ^''  And  in  taking  accounts  a  full  state- 
ment thereof  should  generally  be  made,  and  not  a  mere  statement  of 
the  balance.''" 

§  3228.  Submitting  a  draft  of  report. — It  is  customary,  and,  in- 
deed, essential  in  some  jurisdictions,  to  submit  a  draft  of  the  report 
to  counsel  before  filing  it,  so  that  objections  thereto  may  be  made  be- 
fore the  master  and  the  report  corrected  by  the  master,  if  necessary,*'^ 
but  this  depends  largely  upon  local  practice  and  the  rule  in  the  par- 
ticular jurisdiction.  It  was  the  usual  practice  in  England,*'^  and  in 
the  federal  courts  before  the  adoption  of  the  United  States  equity 
rule  83,  and  is  still  the  practice  in  some  of  the  federal  courts,*'^  but  in 
others,  and  in  some  of  the  state  courts  it  seems  to  be  unnecessary.*'* 

§  3229.  Objections  and  exceptions  before  master. — As  a  general 
rule,  in  most  jurisdictions,  objections  must  be  made  before  the  master 
as  preliminary  to  exceptions  to  his  report,  and  according  to  tlie  better 

"Winter  v.  Innes,  4  M.  &  C.  101;  R.  Co.,  9  Fed.  856;  2  Daniell  Ch.  Pr. 

Jenkins  v.  Bryant,  6  Sim.  603;  Gay-  936,  et  seq.;    2  Beach  Mod.  Eq.  Pr., 

ler  V.  Fitzjohn,  1  Keen  469.  §    695;     Bennett    Office    Master    20. 

^^  See,  Cook  v.  Stevenson,  30  Micii.  See  also,  Jewell  v.  Rock  River  &e. 

242.  Co.,  101  111.  57;   Teoli  v.  Nardolillo, 

^'>Topliff     V.     Jackson,     12     Gray  23  R.  I.  87,  49  Atl.  489. 

(Mass.)    565;    National  Bank  &c.  v.  '^- See  authorities  cited  in  last  note, 

Sprague,  23  N.  J.  Eq.  81.    See  also,  supra. 

Parker  v.   Simpson,  180   Mass.   334,  "^Celluloid    Mfg.    Co.    v.    Cellonite 

62  N.  E.  401.  Mfg.  Co.,  40  Fed.  476.   See  also.  Gay 

•"^  O'Neill    V.    Perryman,    102    Ala.  Mfg.  Co.  v.  Camp,  15  C.  C.  A.   226, 

522,  14  So.  898;    Nims  v.  Nims,   20  68  Fed.  67;  Topliff  v.  Topliff,  145  (U. 

Fla.  204;    Dewing  v.  Hutton,  40  W.  S.)  173,  12  Sup.  Ct.  825;  McNamara 

Va.    521,    21    S.    E.    780.     See    also,  v.  Home  Land  &c.  Co.,  105  Fed.  202; 

Robertson   v.    Baker,    11    Fla.    192;  Troy    &c.    Factory    v.    Corning,    tt 

June  V.  Myers,  12  Fla.  310;    Moore  Blatchf.  (U.  S.)  328. 

v.  Huntington,  17  Wall.  (U.  S.)  417;  "Van  Ness  v.  Van  Ness,  32  N.  J. 

Jeffreys    v.    Yarborough,    2    Hawks  Eq.    729;    Fidelity    Ins.    &c.    Co.    v. 

(N.  Car.)   307;   Herrick  v.  Belknap.  Shenandoah  Iron  Co.,  42  Fed.  372; 

27  Vt.  673;   Reed  v.  Jones,  15  Wis.  Hatch  v.  Indianapolis  &c.  R.  Co.,  9 

40.  Fed.  856.    See  also,  Jennings  v.  Do- 

"  Story  v.  Livingston.  13  Pet.   (U.  Ian,  29  Fed.  861. 
S.)    359;    Hatch  v.  Indianapolis  &c. 


567  OBJECTIOX  AND  EXCEPTIONS.  [§  3C29. 

practice,  no  exceptions  to  a  report  can  be  considered  where  no  ob- 
jections or  exceptions  were  made  or  taken  before  the  master,  at  least 
where  an  opportunity  was  given  for  such  objections  by  the  submis- 
sion of  a  draft  of  his  report.  "The  reason  for  this  rule  of  practice 
is  that  the  master  might  have  allowed  the  objections,  and  corrected 
his  report,  if  errors  had  been  pointed  out  to  him;  thus  saving  the 
parties  unnecessary  expense,  and  the  court  unnecessary  trouble."®' 
It  is  certainly  safer  to  make  objections  at  tlic  first  opportunity,  and 
in  most  jurisdictions  where  the  strict  rule  is  enforced  such  objections 
must  be  made  before  the  master.  But  there  may  be  objections  that 
could  not  well  be  made  before  him,  and  an  objection  is  not  always 
required  in  all  jurisdictions  as  a  basis  for  an  exception  to  his  report 
in  some  respects  at  least.  Thus,  in  some  of  the  federal  courts,  since 
the  United  States  equity  rules  went  into  force,  it  is  held  that  excep- 
tions, in  some  instances  at  least,  may  be  made  within  one  month 
after  the  report  is  filed,  even  though  no  objection  was  made  before 
the  master.^®  So,  wliere  the  master  disobeyed  the  instructions  of 
the  court  it  was  held  that  no  objections  on  tliat  ground  was  required 
to  be  made  before  the  master,"'  and  exceptions  have  been  allowed 
where  the  objection  was  not  made  before  the  master,  because  of  ex- 
cessable  accident,  surprise  or  mistake.''^  It  has  been  held,  however, 
that  where  the  rule  requires  the  master  to  submit  a  draft  of  his  report 
to  counsel  and  written  objections  must  then  be  filed,  the  failure  of 

"Celluloid   Mfg.   Co.   v.   Cellonite  App.)  53  S.  W.  1007.   See  also,  laege 

Mfg.  Co.,  40  Fed.  476;  2  Daniell  Ch.  v.  Bossieux,  15  Gratt.    (Va.)    83,  76 

Pr.    (2d   Am.   ed.)    1483;    Methodist  Am.  Dec.  189;   Lannan  v.  Clavin,  3 

&c.  Church  v.  Jaques,  3  Johns.  Ch.  Kans.  17;    Slee  v.  Bloom,  7  Johns. 

(N.  Y.)  77,  81;  Byington  v.  Wood,  1  Ch.  (N.  Y.)  137;  Copeland  v.  Crane, 

Paige     (N.    Y.)     145;     Copeland    v.  19    Pick.     (Mass.)    73;    Winship    v. 

Crane,  9  Pick.  (Mass.)   73;  Story  v.  Waterman,  56  Vt.  181. 

Livingston,    13    Pet.     (U.    S.)     359;  '^'' Jennings  v.  Dolan,  29  Fed.  861; 

Gaines  v.  New  Orleans,  1  Woods  (U.  Home  Land  fie.  Co.  v.  McNamara,  49 

S.)   104;   Gordon  v.  Lewis,  2  Sumn.  C.  C.  A.  642,  111  Fed.  822;  Hatch  v. 

(U..    S.)    143;    Troy   &c.    Factory   v.  Indianapolis  &c.  R.  Co.,  9  Fed.  856. 

Corning,  6  Blatchf.  (U.  S.)  328;  Gay  "'Clark  v.  Knox,  70  Ala.   607,   45 

Mfg.  Co.  v.  Camp,  15  C.  C.  A.  226,  i^m.  R.  93. 

68  Fed.  67;  Gray  v.  New  York  Nat.  •''Gaines  v.  New  Orleans,  1  Woods 

Bldg.  Asso.,   125  Fed.  512;    Whalen  (U.   S.)    104,  9  Fed.  Cas.   No.  5177. 

v    Stephens,   193   111.   121,   61   N.  E.  See   also.    Prince   v.    Cutler.    69    111. 

921;  Marble  v.  Thomas,  178  111.  540,  267;    Mechanics    &c.    Sav.    Asso.    v. 

53  N.  E.  354;  State  Bank  v.  Rose,  2  Farmington  Sav.  Bank.  41  111.  App. 

Strobh.  Eq.   (S.  Car.)   90;   McKarsie  32. 
V.  Citizens'  Bldg.  Asso..   (Tenn.  Ch. 


§§    3230,    3231.]  REFERENCE    TO    MASTER.  568" 

the  master  to  submit  such  draft  of  his  report  does  not  entitle  a  party 
to  a  consideration  of  objections  not  so  made,  but  his  remedy  is  by 
motion  to  recommit  the  report.®^ 

§  3230.  Irregularities  in  proceedings. — Errors  appearing  on  the 
face  of  the  master's  report,  when  not  otherwise  reviewable,  are  usu~ 
ally  brought  in  question  by  exceptions.'^"  But  irregularities  in  the 
proceedings  of  the  master  or  his  failing  to  report  as  required,  are 
usually  brought  before  the  court  by  motion  to  recommit  or  refer  the 
report  back,  or  to  set  it  aside,  or  the  like,  and  not  by  exceptions.^  ^ 
Thus,  such  a  motion  has  been  held  to  be  the  proper  remedy  for  the- 
failure  of  the  master  to  follow  the  order  of  reference,''^  ^nd  for  his 
failure  to  give  a  proper  notice^^  or  the  like.^*  The  matter  is,  however,, 
largely  regulated  by  statute  or  local  rules  or  practice,  and,  in  order 
to  obtain  a  review  of  the  master's  findings,  specific  exceptions  to  his 
report  are  generally  required. 

§  3231.  Exceptions  to  report. — Objections  are  usually  required  to 
be  followed  up  by  exceptions  to  the  master's  report.'^  But  it  is  held 
that  errors  of  law  may  be  suggested  on  the  hearing  or  motion  to  con- 
firm.^^     The  time  limited  for  filing  exceptions  is  generally  deter- 

«*Hillier  v.  Farrell,  185  Mass.  434,  70  N.  E.  424;  Moore  v.  Rawson,  185 

70  N.  E.  424.  Mass.  264,  70  N.  E.  64;  Roosa  v.  Da- 

'» See,  Rennell  V.  Kimball,  5  Allen  vis,   175    Mass.   117,   55   N.    E.    809; 

(Mass.)    356;    Foster  v.  Goddard,   1  Sanders    v.    Dowell,    7    Sm.    &    M. 

Black  (U.  S.)  506,  and  next  follow-  (Miss.)    206;    Wilkes   v.    Rogers,    6 

Ing  section.  Johns.  Ch.  (N.  Y.)  566;  Clements  v. 

"  Suydam     v.     Dequindre,     Walk.  Pearson,  4  Ired.  Eq.   (N.  Car.)   257; 

(Mich.)  23;  Douglas  v.  Merceles,  24  Musgrove  v.  Lusk,  2  Tenn.  Ch.  576; 

iM.  J.  Eq.  25;    Tyler  v.  Simmons,  6  Wyatt  v.  Thompson,  10  W.  Va.  645. 

Paige  (N.  Y.)  127;  De  Mott  v.  Ben-  See  also,  Butler  &c.  Co.  v.  Georgia 

son,  4  Edw.  Ch.  (N.  Y.)  297.  &c.  R.  Co.,  119  Ga.  959,  47  S.  E.  320; 

''-  United  States  &c.  Co.  v.  Pitzile,  George  Green  Lumber  Co.  v.  Nutri- 

66    111.    App.    475;    Emerson    v.    At-  ment  Co.,  113  111.  App.  635;  McMan- 

water,  12  Mich.  314 ;  Miller  v.  Miller,  nomy  v.   Walker,   63    111.  App.   259; 

26  N.  J.  Eq.  423;   Stevenson  v.  Gre-  Thorne   v.    Hilliker,    12    Mich.    215; 

gory,  1  Barb.  Ch.    (N.  Y.)    72;    Ar-  Mendrix  v.  Holden,  58   S.  Car.  495,. 

nold  V.  Blackwell,  17  N.  Car.  1.  36  S.  E.  1010;    Greenleaf  v.  Leach, 

"Lamson  v.  Drake,  105  Mass.  564.  20  Vt.   281;    Harding  v.   Handy,   11 

"See,  Ashmead  v.  Colby,  26  Conn.  Wheat.  (U.  S.)  103. 

287;    Green   v.   Brien,    1   Tenn.    Ch.  ""Williams  v.  Spitzer,  203  111.  505, 

477.  68  N.  E.  49;  Von  Tobel  v.  Ostrander, 

"Hillier  v.  Farrell,  185  Mass.  434,  15 J  111.  499,  42  N.  E.  152;  Fowler  v. 


569 


FORM    OF    EXCEPTIONS. 


[§  3232. 


mined  by  the  statute,  practice  or  rule  in  the  particular  jurisdiction.'^^ 
Where  there  is  a  re-committal  to  the  master  and  a  second  report,  it 
is  safer  and  often  necessary  to  renew  the  exceptions,'*  but  there  are 
cases  in  which  an  exception  need  not  be  renewed.'^''  In  West  Vir- 
ginia a  party  may  take  advantage  of  an  error  appearing  upon  the 
face  of  the  report  without  excepting  thereto,  but  unless  the  error 
appears  upon  its  face  the  report  will  be  presumed  to  be  correct,  or 
admitted  as  correct  by  the  parties,  both  in  regard  to  the  sufficiency 
of  the  evidence  to  support  it  and  in  other  respects  as  well.**" 

§  3232.  Form  of  exceptions. — It  has  been  said  that  exceptions  to 
a  master's  report  are  in  the  nature  of  a  special  demurrer,^ ^  and  it 
is  well  settled  that  they  must  be  specific.**-  Thus,  an  exception 
which  does  not  distinctly  point  out  or  designate  any  particular  item 
or  error  is  generally  unavailing.^^  So,  it  has  been  held  that  a  gen- 
eral objection  that  evidence  is   irrelevant  and   incompetent  is  not 


Payne,  52  Miss.  210;  Windon  v. 
Stewart,  48  W.  Va.  488,  37  S.  E.  603; 
Gordon  v.  Lewis,  2  Sumn.  (U.  S.) 
143.  See  also,  Levert  v.  Redwood,  9 
Port.  (Ala.)  79;  Bogert  v.  Furman, 
10  Paige  (N.  Y.)  496;  Adams  v. 
Claxton,  6  Ves.  226;  Adams  Eq.  (7tli 
Am.  ed.)  386. 

■"See,  United  States  Eq.  Rule  83 
(giving  one  month);  Gasquet  v. 
Crescent  City  Brew.  Co.,  49  Fed. 
493;  Weber  v.  Weitling,  18  N.  J.  Eq. 
39;  Jones  v.  White,  112  Ala.  449,  20 
So.  527;  Wooding  v.  Bradley,  76  Va. 
614;  Smith  v.  Brown,  44  W.  Va.  342, 
30  S.  E.  160;  but  see,  as  to  waiver 
of  time  limit,  Jordan,  Ex  parte,  94 
U.  S.  248. 

'^Kee  v.  Kee,  2  Gratt.  (Va.)  116; 
Pindley  v.  Findley,  42  W.  Va.  372, 
26  S.  E.  433;  but  compare,  Hopkins 
V.  Pritchard,  51  W.  Va.  385,  41  S.  E. 
347. 

"See,  Moore  v.  Randolph,  70  Ala. 
575;  Lippincott  v.  Bechtold,  54  N.  J. 
Eq.  407,  34  Atl.  1079.  See,  Bannon 
V,  Overton.  1  Tenn.  Ch.  528. 


^oBank  of  Union  v.  Nickell,  (W. 
\a.)  49  S.  E.  1003. 

""Ridley  v.  Ridley,  1  Coldw. 
(Tenn.)  323;  Stewart  v.  Stewart,  40 
W.  Va.  65,  20  S.  E.  862;  but  see, 
Foster  v.  Goddard,  1  Black  (U.  S.) 
506. 

«=  Foster  v.  Gressett,  29  Ala.  393; 
Whitworth  v.  Lowell,  178  Mass.  43, 
59  N.  E.  760;  Crawford  v.  Osmun,  90 
Mich.  77,  51  N.  W.  356;  Newcomb  v. 
White,  5  N.  Mex.  435.  23  Pac.  671; 
Hoagland  v.  Saul,  (N.  J.  Eq.)  53 
Atl.  704;  Rader  v.  Yeargin,  35  Tenn. 
486,  3  S.  W.  178;  Green  v.  Lanier,  5 
Heisk.  (Tenn.)  662;  Richie  v.  Levy, 
69  Tex.  133,  6  S.  W.  685;  Story  v. 
Livingston,  13  Pet.  (U.  S.)  359; 
Dexter  v.  Arnold,  2  Sumn.  (U.  S.) 
108;  Sheffield  &c.  Co.  v.  Gordon,  151 
U.  S.  285,  14  Sup.  Ct.  343. 

^^Snell  V.  Deland.  136  111.  533,  27 
N.  E.  707;  Hayes  v.  Hammond.  162 
111.  133,  44  N.  E.  422;  Baker  v.  Mayo. 
129  Mass.  517;  Neal  v.  Briggs,  119 
Fed.  477;  Nickels  v.  Kane,  82  Va 
309. 


§    3233.1  REFERENCE   TO    MASTER.  570 

sufficiently  specific  to  be  entitled  to  consideration  at  the  hearing.*** 
Regularly,  exceptions  should  be  properly  entitled  in  the  cause,  signed 
by  counsel,  and  properly  show  that  the  party  excepts  and  appeals  to 
the  judgment  of  the  court  and  each  exception  should  usually  be 
separately  stated.^^ 

§  3233.  Action  on  exceptions. — "After  exceptions  have  been  filed, 
the  next  step,"  says  Mr.  Adams,««  "is  that  they  should  be  heard  and 
determined  by  the  court,  and  in  doing  this  there  are  three  courses 
for  adoption.  (1)  They  may  be  disallowed,  or  allowed  absolutely, 
which  has  the  effect  of  at  once  confirming  the  report,  either  as  it 
stands,  or  with  such  changes  as  the  allowance  of  the  exceptions  may 
make."  (2)  If  the  facts  are  imperfectly  stated  in  the  report,  so 
that  no  judgment  can  be  formed  as  to  the  proper  conclusion;  or  if 
the  existing  evidence  is  unsatisfactory,  but  it  is  possible  that  other 
evidence  exists,  which  in  consequence  of  a  favorable  finding  has  not 
been  adduced;  or  if  the  nature  of  the  matter  contested,  or  the  frame 
of  the  exceptions,  is  such  that  their  allowance  shows  a  necessity  for 
further  investigation ;  it  may  be  referred  back  to  the  master  to  re- 
view his  report,  continuing  in  the  meantime  the  reservation  of  fur- 
ther directions,  and  either  allowing  the  exceptions,  or  making  no 
order  thereon.  On  a  reference  back  to  review,  the  master  may  re- 
ceive additional  evidence ;  but  if  it  be  accompanied  by  an  allowance 
of  the  exceptions,  he  can  come  to  no  conclusion  inconsistent  with  the 
terms  of  the  exceptions.  If  no  order  is  made  on  the  exceptions,  his 
finding  or  reviewal  is  unfettered.®^  (3)  If  the  suit  has  taken  such 
a  course,  that  at  the  time  of  hearing  the  exceptions  it  is  apparent 
that  whatever  order  be  made  the  same  decree  will  follow,  the  court 
may  decline  to  adjudicate  on  them,  and  may  proceed  to  decree  on 
further  directions,  as  if  no  exceptions  had  been  filed."®® 

'*  Hamilton  v.  Southern  Nav.  &c.  ''  Egerton  v.  Jones,  1  Russ.  &  M. 

Min.  Co.,  33  Fed.  562.  694;    Twyford   v.   Trail,   3   M.   &   C. 

'^  See,   Bennett  Office  Master,  Ap-  645 ;    Livesey    v.    Livesey,    10    Sim. 

pendix    I,    for    form.     See    also,    2  331;  Grant,  In  re,  10  Sim.  573;  Bal- 

Daniell    Ch.    Pr.     (6th    ed.)     *1316;  lard  v.  White,  2  Hare  158;   Stocken 

Adams  Eq.   (8th  ed.)   *386;  4  Desty  v.   Dawson,    2   Phil.    141.    See   also, 

Fed.  Proc.  630.  Mitchell     v.     McKinny,     6     Heisk. 

«"  Adams  Eq.,  386,  387.  (Terin.)    83;    Harris    v.    Ferris,    18 

"'See   also,   Gottfried  v.   Crescent  Pla.  84;   Van  Ness  v.  Van  Ness,  32 

Brew.    Co.,    22    Fed.    433;    White    v.  N.  J.  Eq.  729. 

Hampton,    10    Iowa    238;    Clark    v.  «"  Hall    v.    Laver,    1     Hare    571; 

Willoughby,  1  Barb.  Ch.  (N.  Y.)  68.  Robinson    v.    Milner,    1    Hare    578, 


571  RECOMMITTAL — RE-KEFEUEXCE.  [§    3234. 

§3234.  Recommittal — Re-reference. — The  matter  of  recommit- 
ting the  report  to  the  master  I'or  correction  or  of  refering  the  case 
again  to  the  same  or  another  master  is  largely  within  the  discretion 
of  the  court,  and  the  court  will  not,  ordinarily,  grant  a  motion  to 
recommit  without  some  good  reason  being  shown  or  appearing.'"* 
Nor  will  it  be  granted,  under  ordinary  circumstances,  at  the  instance 
of  a  party  whose  own  neglect  has  created  the  only  occasion  or  reason 
for  so  doing. '•^  Thus,  where,  upon  a  reference  to  ascertain  the  dam- 
ages for  infringement  of  a  patent,  the  complainant  introduced  before 
the  master  testimony  given  by  the  defendant  in  another  suit  as  to 
the  profits  made  by  him  by  the  use  of  the  infringing  machines,  and 
the  defendant's  counsel  made  no  effort  to  correct  such  testimony,  but 
relied  wholly  on  his  exception  to  the  master's  report  on  the  ground 
that  the  testimony  was  incompetent,  it  was  held  that,  after  the  court 
had  overruled  such  exception,  it  would  not  reopen  the  hearing  be- 
fore the  master  to  permit  the  defendant  to  show  that  his  testimony 
in  the  previous  suit  was  inaccurate.®-  But  there  are  cases  in  which 
the  power  to  remand  has  been  exercised  in  order  to  reach  the  merit? 
and  do  justice,  even  though  the  necessity  may  have  arisen  to  some 
extent  from  the  carelessness  or  ignorance  of  counsel,''^  and  the  courts 
often  exercise  their  discretion  by  recommitting  where  the  introduc- 
tion of  further  evidence  seems  necessary.®*  So,  of  course,  where  the 
court  finds  that  the  master  has  failed  to  find  on  all  the  necessary 
material  facts  required  by  the  submission,®-'^  or  has  otherwise  com- 

note;  Courtenay  v.  Williams,  3  Hare  "^Cimiotti  &c.  Co.  v.  Bowsky,  113 

539,  554.  Fed.  699. 

»"  Henderson  v.  Poster,  182  Mass.  ''^  See,    Beard    v.    Green,    51    Miss. 

447,  65  N.  E.  810;   Mosher  v.  Joyce,  856. 

2   C.   C.   A.   322,   51    Fed.    441,    444;  ''*  Beard    v.    Green,    51    Miss.    856; 

Hubbard  v.   Camperdown   Mills,   26  Asp  v.  Warren,  108  Mass.  587;  Nunn 

S.  Car.  581.  v.  Nunn,  66  Ala.  35;   Fuller  v.  Ful- 

"  Central  Trust  Co.  v.  Georgia  ler,  23  Fla.  236,  2  So.  426;  Worth- 
Pac.  R,  Co.,  83  Fed.  386;  Reading  ington  v.  Hiss,  70  Md.  172,  16  Atl. 
Ins.  Co.  V.  Egelhoff,  115  Fed.  393;  537,  17  Atl.  1026;  Thomas  v.  Daw- 
Gould  V.  Elgin  City  Banking  Co.,  son,  9  Gratt.  (Va.)  531;  Waterman 
136  111.  60,  26  N.  E.  497;  Slaughter  v.  Buck,  63  Vt.  5f4,  22  Atl.  15;  Wil- 
V.  Slaughter,  8  B.  Mon.  (Ky.)  482;  liams  v.  Clark,  93  Va.  690,  25  S.  E. 
Sowles    V.    Sartwell,    (Vt.)    56    Atl.  1013. 

282.     See    also.    Lemon    v.    Rogge,  '^^  Bolware     v.     Bolware,     4     Litt. 

(Miss.)  11  So.  470;  Nece  v.  Pruden,  (Ky.)   256;   Forest  Hill  &c.  Asso.  v. 

8    Phila.    (Pa.)    350;    Vandermark's  McEvoy,  24  Ky.  L.  R.  161,  66  S.  W. 

Estate,  2  Luz.  Leg.  Reg.  (Pa.)  83.  1031;  Dutch  Church  v.  Smock,  1  N. 


§    3235.]  REFERENCE   TO    MASTER.  57^ 

mitted  an  error  that  is  inaterial,»«  the  court  may  recommit.  But,, 
as  will  be  shown  in  the  next  section,  the  court  may  generally  take 
up  the  matter  and  make  its  own  findings,  or  correct  small  errors, 
without  recommitting  the  report,  and  will  generally  refuse  to  re- 
commit when  no  good  could  be  accomplished  by  a  recommittal." 
It  has  been  held  that  the  court  may  receive  evidence  of  extrinsic 
facts  upon  application  to  recommit.®^  It  has  also  been  held  that 
notice  to  parties  is  unnecessary  on  a  recommittal  to  correct  a  re- 
port where  no  evidence  is  to  be  taken.^^  A  recommittal  for  a  par- 
ticular purpose  does  not,  ordinarily,  open  up  the  whole  case,  and  the 
master  should  confine  himself  within  the  limitations  of  the  order  of 
recommittal.^'''* 

§  3235.  Correction  of  report — Confirmation. — As  already  inti- 
mated, the  court  may,  in  many  instances  at  least,  correct  the  mas- 
ter's report  without  recommitting  it.^"^  Indeed,  the  court  may  make 
additional  and  supplemental  findings  based  upon  the  evidence.  ^''- 
A  report  may  also  be  confirmed  in  part  and  recommitted  in  part.^"^ 
Unless  otherwise  provided  by  statute  or  determined  by  the  practice 
in  the  particular  jurisdiction,  the  general  rule  is  that  any  report 

J.  Eq.  148;   Jones  v.  Byrne,  94  Va.         ^"^  Huston  v.  Cassidy,  14  N.  J.  Eq. 

751,  27  S.  E.  591;   King  v.  Burdett,  320;     Utica    Ins.    Co.    v.    Lynch,    2 

44  W.  Va.  561,  29  S.  E.  1010.  Barb.  Ch.  (N.  Y.)  573;  Grossman  v. 

""Brokaw    v.    McDougall,    20    Fla.  Card,   143   Mass.   152,   9   N.   E.   514; 

212;    Brueggestradt  v.  Ludwig,  184  American    &c.    Co.    v.    Pollard,    132 

111.    24,    56    N.    E.    419;    Laswell    v.  Ala.    155,    32    So.    630;     Gaines    v. 

Robbins,  39  111.  209,  219;  Carman  v.  Brockerhoff,  136  Pa.  St.  175,  19  Atl. 

Hurd,  1  Pinn.   (Wis.)    619.  958;   Richie  v.  Levy,  69  Tex.  133,  6 

"See.    Taylor    v.    Robertson,    27  S.  W.  685;  but  see,  Miller  v.  People's 

Fed.  537;  Jennings  v.  Dolan,  29  Fed.  Lumber  Co.,  98  111.  App.  468;  Poling 

861;  McElroy  v.  Swope,  47  Fed.  380;  v    Huffman,  48  W.  Va.  639,  37  S.  E. 

Cawley  v.  Cawley,  181  Mass.  451,  63  526. 

N.  E.  1070.  "^  Henderson  v.  Harness,  184   111. 

"^Peck  v.  Metcalf,  8  R.  I.  386.  520,  56  N.  E.  786;  Johnson  v.  Galla- 

'■"  Prince  v.  Cutler,  69  111.  267.  gos,  10  N.  Mex.  1,  60  Pac.  71.    See 

i»°  Harris   v.    Ferris,    18    Fla.    84;  also,    Barnum    v.    Barnum,    42    Md. 

Emig,  In  re,  186  Pa.  St.  409,  40  Atl.  251;     Callender     v.     Colegrove,     17 

522.    See  also,  Clark  v.  Willoughby,  Conn.  1;  Witters  v.  Sowles,  43  Fed. 

1  Barb.  Ch.   (N.  Y.)   68.    See  gener-  405;    Carpenter  v.  Schermerhorn,   2 

ally  as  to   scope   of  re-reference.    2  Barb.  Ch.  (N.  Y.)  314;  2  Beach  Mod. 

Beach  Mod.  Eq.  Pr.,  §  715,  and  com-  Eq.  Pr.,  §  712. 

pare,  Van  Ness  v.  Van  Ness,  32  N.         ""  Callender  v.  Colgrove.  17  Conn. 

J.  Eq.  729;  Pinneo  v.  Goodspeed,  120  1.    See  also.  Mitchell  v.  McKinny,  6. 

111.  524,  12  N.  E.  196.  Heisk.  (Tenn.)  83. 


573  WEIGHT   GIVEN    MASTER'S    FINDING.  [§    323G. 

to  which  exceptions  might  be  taken  must  be  confirmed  before  it  can 
be  finally  acted  upon.^***  The  rule  is  stated  by  Mr.  Beach  as  fol- 
lows: "Wherever  the  discretion  of  the  court  is  exercised  upon  the 
first  order,  and  where  the  master  is  only  called  upon  to  perform  some 
act  or  make  some  inquiry  necessary  for  carrying  out  the  order  which 
the  court  has  made,  the  report  of  the  master  will  not  require  con- 
firmation. But  where  the  report  is  required  for  the  purpose  of 
enabling  the  court  to  make  some  discretionary  order  or  decree, 
whether  the  order  directing  the  reference  be  made  upon  a  decree  or 
upon  any  interlocutory  application,  the  report  requires  confirmation 
before  it  is  adopted  as  the  foundation  of  such  future  order  or  de- 
cree.^'^°°  Under  the  old  practice  a  rule  nisi  was  entered  that  the  re- 
port should  stand  confirmed  unless  cause  to  the  contrary  should  be 
shown  within  eight  days.  A  similar  practice  obtains  in  some  juris- 
dictions in  this  country,  and  in  others  the  general  equity  rules  pro- 
vide that  the  report  shall  stand  confirmed  unless  exceptions  are  taken 
within  the  time  designated  by  such  rules.^"*'  The  order  of  confirma- 
ation  is  interlocutory  rather  than  a  final  adjudication,^"'  and  it  has 
been  held  that  a  confirmation  may  be  implied  in  some  instances 
without  any  express  order  directly  confirming  the  report. ^'^^  It  has 
also  been  held  that  the  master's  report  is  not  usually  evidence  until 
after  confirmation,^"^  but  is  admissible  as  such  after  exceptions  have 
been  overruled.  ^^° 

§  3236.  Weight  to  be  g-iven  master's  finding. — It  is  well  settled 
in  most  jurisdictions  that  the  report  of  the  master  is  not  necessarily 
conclusive  as  to  the  facts  found  by  him  but  may  be  reviewed  by  the 

^"*  Dorsey   v.   Hammond,    1    Bland  First  Nat.   Bank   v.   Simms,   49   W. 

(Md.)    463;    Champlin    v.    Memphis  Va.  442,  38  S.  E.  525. 
&c.   R.   Co.,   9   Heisk.    (Tenn.)    683;  ""Johnson  v.  Meyer,  54  Ark.  437, 

Scott  V.  Livesey,  2  Sim.  &  St.  300,  1  16  S.  W.  121;  White  v.  Hampton,  10 

Eng.  Ch.  300;  16  Cyc.  459.  Iowa    238;    Portoues  v.    Holmes,   33 

'"=2  Beach  Mod.  Eq.  Pr.,  §  699;   2  HI.  App.   312;    but  compare,  Ander- 

Daniell  Ch.  Pr.    (5th  ed.),   §§  1304,  son  v.  Henderson,  irt  HI.  164,  16  N. 

1305.  E.  232. 

'°« See,    2    Beach    Mod.    Eq.    Pr.,         "'  Diffenderffer  v.  Winder.   3  Gill 

§  699;  16  Cyc.  459.  &  J.  (Md.)  311;  San  Antonio  &c.  R. 

'"Rust  v.  Mobile  &c.  Co.,  124  Ala.  Co.  v.  Ryan,   (Tex.  Civ.  App.)   47  S. 

202,   27  So.   263;    Adkisson  v.   Dent.  W.  749. 

11  Ky.  L.  R.  85,  11  S.  W.  950;   Nash         ""Richie  v.  Levy,   69   Tex.   133.   6 

V.   Hunt,    116   Mass.    237;    Carter  v.  S.   W.   685;    Whitehead   v.   Perie,   15 

Privatt,  3  Jones  Eq.   (N.  Car.)  345;  Tex.  7. 


3236.] 


REFERENCE    TO    MASTER. 


574 


court."^  Further  than  this,  however,  it  is  difficult  to  state  any  pre- 
cise general  rule,  for  the  authorities  are  somewhat  conflicting  as  to 
just  what  weight  should  be  given  to  the  master's  finding.  It  is 
frequently  said  that  it  should  be  given  the  same  weight  as  the  ver- 
dict of  a  jury,"^  but  in  some  jurisdictions  this  doctrine  is  expressly 
repudiated/^^  and  in  many  of  them  it  is  said  that  the  finding  of  the 
master,  at  least  where  the  evidence  is  reported,  is  merely  advisory.^  ^* 
Yet  the  finding  of  the  master  is  presumed  to  be  correct  and  when  on 
conflicting  evidence,  will  rarely  be  disturbed  unless  it  is  very  clearly 
incorrect,  especially  where  the  reference  is  by  consent.^^^  It  is 
said,  however,  that  while  the  presumption  in  the  trial  court  should 
be  that  the  finding  of  the  master  is  correct,  if  the  trial  court  ad- 
judges it  erroneous  the  presumption  goes  down."®  On  exceptions 
to  the  master's  report,  if  the  evidence  is  not  before  the  trial  court,  the 


"1  Field  V.  Holland,  6  Cranch  (U. 
S.)  8;  Ennesser  v.  Hudek,  169  111. 
494,  48  N.  E.  673;  Brammerman  v. 
Jennings,  101  Ind.  253;  Honore  v. 
Colmesnil,  1  J.  J.  Marsh.  (Ky.)  506; 
Near  v.  Lowe,  56  Mich.  632,  23  N. 
W.  448;  Burhans  v.  Van  Zandt,  7 
Barb.  (N.  Y.)  91;  McMillan  v.  Mc- 
Neill, 69  N.  Car.  129;  Phillip's  Ap- 
peal, 68  Pa.  St.  130;  Thorpe  v. 
Thorpe,  12  S.  Car.  154;  Crislip  v. 
Cain,  19  W.  Va.  438;  but  see,  under 
Vermont  statute,  Hathaway  v.  Ha- 
gan,  64  Vt.  135,  24  Atl.  131;  Water- 
man V.  Buck,  58  Vt.  519. 

"=Vaughan  v.  Smith,  69  Ala.  92; 
Cary  v.  Herrin,  62  Me.  16;  Field  v. 
Romero,  7  N.  Mex.  630,  41  Pac.  517; 
Perry  v.  Sullivan  &c.  Co.,  6  S.  Car. 
310.  See  also,  Davis  v.  Schwartz, 
155  U.  S.  631,  15  Sup.  Ct.  237;  Hay- 
mond  v.  Camden,  48  W.  Va.  463,  37 
S.  E.  642;  Newell  v.  West,  149  Mass. 
520,  21  N.  E.  954;  Stannard  v. 
Sperry,  56  Conn.  541. 

"^  See,  Holmes  v.  Holmes,  18  N.  J. 
Eq.  141;  Stewart  v.  Stewart,  40  W. 
Va.  65,  20  S.  E.  862;  but  compare, 
Haulenbeck  v.  Cronkright,  23  N.  J. 
Eq.  407. 


"*Boesch  V.  Graff,  133  U.  S.  697, 
10  Sup.  Ct.  378,  381;  Kimberly  v. 
Arms,  129  U.  S.  512,  9  Sup.  Ct.  355; 
Enesser  v.  Hudek,  169  111.  494,  48  N. 
E.  673;  Bremmerman  v.  Jennings, 
101  Ind.  253;  Medler  v.  Albuquerque 
Hotel  &c.  Co.,  6  N.  Mex.  331,  28  Pac. 
551;  McMillan  v.  McNeill,  69  N.  Car. 
129;  Shipman  v.  Fletcher,  91  Va. 
473,  22  S.  E.  458.  See  also,  Calvert 
v.  Nickles,  26  S.  Car.  304,  2  S.  E. 
116;  Wheeler  v.  Alderman,  34  S. 
Car.  533,  13  S.  E.  673. 

"'Tilghman  v.  Proctor,  125  U.  S. 
136,  8  Sup.  Ct.  894;  Girard  &c.  Ins. 
Co.  V.  Cooper,  162  U.  S.  529,  16  Sup. 
Ct.  879;  Camden  v.  Stuart,  144  U.  S. 
104,  12  Sup.  Ct.  585;  Ward  v.  Abbe- 
ville, 130  Ala.  597,  30  So.  341; 
Brueggestradt  v.  Ludwig.  184  111. 
24,  56  N.  E.  419;  Williams  v.  Lind- 
blom,  163  111.  346,  45  N.  B.  245; 
Pray  v.  Brigham,  174  Mass.  129,  54 
N.  E.  338;  Gentile  v.  Kennedy,  8  N. 
Mex.  347,  45  Pac.  879;  Felton  v. 
Felton,  47  W.  Va.  27,  34  S.  E.  753; 
2  Beach  Mod.  Eq.  Pr.,  §  711. 

""  Bremmerman  v.  Jennings,  101 
Ind.  253,  256,  citing  McKinney  v. 
Pierce,  5  Ind.  422. 


575  WEIGHT   GIVEN    MASTER'S    FINDING.  [§    3236. 

findings  of  fact  by  the  master  will  l)e  taken  by  that  court  as  true."^ 
And  it  is  held  in  some  jurisdictions  that  the  findings  of  a  referee  or 
master  are  entitled  to  the  same  credit  in  the  trial  court  as  the  findings 
of  the  trial  court,  in  a  case  tried  by  such  court,  are  entitled  to  on  ap- 
peal."« 

"'Atlas     Nat.     Bank     v.     Abram     117,  80  N.  W.  1107,  citing  other  Wis- 
French  Sons  Co.,  134  Fed.  746.  consin  decisions. 

"'Zoesch   V.    Thielman,    105    Wis. 


i 


EVIDENCE  IN  ADMIRALTY  CASES. 


Vol.  4  Elliott  Ev. — 37  577 


CHAPTEK  CLVIII. 


ADMIRALTY   JURISDICTION. 


Sec. 

3237.  Generally. 

3238.  Origin      and      history  —  "Ad- 

miral." 

3239.  Nature  of. 

3240.  Admiralty    jurisdiction — Unit- 

ed States  rule. 

3241.  Admiralty    law    follows    civil 

law. 

3242.  Admiralty  jurisdiction  —  Con- 

trolled by  maritime  laws. 


Sec. 

3243.  Jurisdiction  must  appear — Ef- 

fect of  tide. 

3244.  Admiralty    law — Administercil 

in  the  United  States. 

3245.  Influence  of  constitution   and 

statute     on     the     admiralty 
laws. 

3246.  "High  seas" — Meaning. 

3247.  High  seas — Great  Lakes. 


§  3237.  Generally. — Admiralty  jurisdiction  was  originally  founded 
on  the  theory  that  the  ships  of  any  country  were  considered  as  a  part 
of  its  territory.  This  accounts,  too,  for  the  history  of  the  national 
strife  in  obtaining  or  holding  control  of  the  seas  and  excuses  the  am- 
bition and  pride  of  civilized  and  commercial  countries  in  their  navies 
and  merchant  marine.  While  it  was  the  object  of  every  country  to 
encourage  navigation  and  maritime  commerce,  it  was  also  the  desire 
of  all  commercial  countries  to  protect  and  regulate  their  ships  and 
seamen.  Hence,  admiralty  jurisdiction  grew  out  of  the  common 
respect  of  the  rights  of  navigation  as  first  administered  by  the  arbi- 
trary power  of  the  admiral — or  as  settled  by  crude  arbitration  in 
cases  of  conflict  of  authority.^ 

§  3238.  Origin  and  history — "Admiral." — Before  admiralty  courts 
were  known  or  organized  the  jurisdiction  of  the  sea,  so  far  as  any 
particular  nation  was  concerned,  was  administered  by  a  great  naval 
officer  holding  his  office  and  authority  directly  from  the  sovereign, 
but  by  reason  of  his  peculiar  situation  he  was  clothed  with  many 
of  the  prerogatives  of  sovereignty.    Many  nations  having  consider- 


*3  Kent  Comm.  2;   Zouch's  Juris-     Bro.    Civil    &   Adm.    Law, 
diction     of    Admiralty — Ass.     1.      2     Benedict  Adm.  Pr.,  §  2. 

579 


chap. 


g    3239.]  ADMIRALTY   JURISDICTION.  580 

able  maritime  commerce  had  some  high  or  supreme  officer  bearing  a 
title  resembling  in  a  greater  or  less  degree  the  English  word  admiral. 
So  that  admiralty  jurisdiction  in  its  primitive  form  was  little  else 
than  the  exercise  of  the  power  of  the  admiral.  It  must  be  conceded 
that  the  fierce  rule  of  an  uncouth  navigator  was  not  tempered  with 
either  the  mercy  or  justice  now  administered  in  these  courts.  The 
due  administration  of  the  law  of  the  high  seas  has  gradually  passed 
into  the  functions  of  properly  constituted  courts  while  the  high  of- 
ficer, still  known  as  the  admiral,  is  now  limited  in  his  authority  to 
the  general  direction  of  the  fleet  or  the  less  pretentious  control  of  his 
individual  vessel.  His  quondam  power  and  greatness  are  seen  alone 
in  the  splendid  system  of  laws  which  bears  his  name.  "The  mild  and 
equitable  system  of  admiralty  law  derives  its  descent  through  a  long 
line  of  modifications  and  meliorations,  from  the  absolute  and  irre- 
sponsible rule  of  naval  command,  as  the  peaceful  law  of  real  estate 
and  the  common  law  generally,  have  descended  from  the  iron  despot- 
ism of  military  dominion  carried  to  its  perfection  in  the  feudal  sys- 
tem."2 

§  3239.  Nature  of. — The  very  best  reasons  exist  for  lodging  the 
admiralty  jurisdiction  within  the  highest  powers  of  the  general  gov- 
ernment. It  is  through  the  medium  of  navigation  that  nations  come 
in  contact  with  each  other  upon  the  universal  highway — the  open  sea. 
The  vessels  of  a  nation  must  be  under  its  supreme  control  and  any 
wrong  inflicted  by  them  upon  a  citizen  of  another  country  must  bo 
punished  and  any  injuries  sustained  by  them  at  the  hands  of  seamen 
or  citizens  of  another  country  must  be  vindicated.  In  order  to  en- 
courage commerce  and  navigation  and  to  secure  peace  among  nations 
they  must  control  their  ships  and  regulate  commerce  on  the  seas. 
Mr.  Justice  Story  states  this  principle  thus:  "The  admiralty  juris- 
diction naturally  connects  itself  on  the  one  hand,  with  our  diplo- 
matic relations  to  the  duties  to  foreign  nations  and  their  subjects, 
and,  on  the  other  hand,  with  the  great  interest  of  navigation  and 
commerce,  foreign  and  domestic.  There  is,  then,  a  peculiar  wisdom 
in  giving  to  the  national  government  a  jurisdiction  of  this  sort  whicli 
cannot  be  yielded,  except  for  the  general  good  and  which  multiplies 
the  securities  for  public  peace  abroad,  and  gives  to  commerce  and 
navigation  the  most  encouraging  support  at  home."^ 

=  Benedict  Adm.  Pr.,  §§  3,  4;  Hall  =2  Story  Comm.  on  Const.,  §  1672; 
Adm.  Intro.  7,  8.  Moses  Taylor,  The,  4  Wall.   (U.  S.) 

411. 


581  UNITED  STATES  RULE.  [§'   3240. 

§  3240.  Admiralty  jurisdiction — United  States  rule. — Admiralty 
jurisdiction  was  conferred  upon  the  federal  courts  by  the  constitu- 
tion. But  by  its  express  terms  the  judicial  power  was  extended  to 
all  cases  of  admiralty  and  maritime  jurisdiction.  This  has  been 
held  to  mean  all  such  cases  of  a  maritime  character  as  fell  within 
the  admiralty  courts  of  the  states  at  the  time  of  tlie  adoption  of  tliC 
constitution.*  There  is  a  distinction  between  the  admiralty  juris- 
diction as  exercised  by  the  federal  courts  and  the  English  courts  of 
admiralty,  as  well  as  that  exercised  by  the  continental  courts,  whicli 
were  organized  under  and  governed  by  the  principles  of  the  civil  law.' 
The  American  rule  on  this  subject  has  been  stated  by  tlie  United 
States  Supreme  Court  as  follows:  "Principal  subjects  of  admiralty 
jurisdictions  are  maritime  contracts  and  maritime  torts,  including 
captures  jure  belli,  and  seizures  on  w'ater  for  municipal  and  revenue 
forfeitures.  (1)  Contracts,  claims,  or  service  purely  maritime  and 
touching  rights  and  duties  appertaining  to  commerce  and  naviga- 
tion, are  cognizable  in  the  admiralty.  (2)  Torts  or  injuries  com- 
mitted on  navigable  waters,  of  a  civil  nature,  are  also  cognizable  in 
the  admiralty  courts.  Jurisdiction  in  the  former  case  depends  upon 
the  nature  of  the  contract,  but  in  the  latter  it  depends  entirely  upon 
locality.  Mistakes  need  not  be  made  if  these  rules  are  observed ; 
but  contracts  to  be  performed  on  waters  not  navigable,  are  not  mari- 
time any  more  than  those  made  to  be  performed  on  land.  Nor  are 
torts  cognizable  in  the  admiralty  unless  committed  on  the  waters 
within  the  admiralty  and  maritime  jurisdiction,  as  defined  by  law. 
Such  jurisdiction,  whether  of  torts  or  of  contracts,  was,  and  still  is, 
restricted  in  the  parent  country  to  tide-waters,  as  they  have  no  large 
fresh-water  lakes  or  fresh-water  rivers  which  are  navigable.  Waters 
where  the  tide  did  not  ebb  and  flow,  were  regarded  in  that  country 
as  not  within  the  admiralty  and  maritime  jurisdiction.  Attempt  was 
subsequently  made  to  restrict  the  jurisdiction  of  the  admiralty  courts 
in  torts  to  cases  arising  on  the  high  seas.  But  this  court  held  tliat 
it  extended  to  all  waters  within  the  ebb  and  flow  of  the  tide,  though 
infra  corpus  eomitatus,  and  as  far  up  the  rivers  emptying  into  the 
sea  or  bays  and  arms  of  the  sea,  as  the  tide  ebbed  and  flowed."*' 

*Warmg   v.   Clarke,    5    How.    (U.  (U.S.)  574,579;  Thomas  Jefferson, 

S.)  441,  454.  The,  10  Wheat.   (U.  S.)    428;   Insur- 

''Bags  of  Linseed,  1  Black  (U.  S.)  ance  Co.  v.  Dunham,  11  Wall.    (U. 

108.  S.)    1;    Propeller   Genesee   Chief   v. 

•Belfast,    The,    7    Wall.     (U.    S.)  Fitzhugh,  12  How.  (U.  S.)  443;  Eas- 

624,  637;    Commerce,   The,   1   Black  ton,  Ex  parte,  95  U.  S.  68,  72;  Mauiy 


§§    'o24:l,    3242.]  ADMIRALTY   JURISDICTION.  582 

§  3241.  Admiralty  law  follows  civil  law. — The  "law  of  the  sea" 
naturally  gi-ew  as  niaritiine  commerce  extended  and  the  sea  was 
necessarily  considered  the  common  highway  of  nations,  in  which, 
for  the  purpose  of  business,  all  nations  were  considered  equal  and 
their  rights  finally  guaranteed  in  a  system  of  rules  enforced  by  the 
courts  of  the  different  nations.  Hence,  these  laws  naturally  became 
impressed  with  the  characteristics  of  the  laws  of  the  countries  wherein 
they  were  first  administered.  A  modern  writer  has  expressed  this 
principle  thus:  "The  countries  that  earliest  reduced  the  law  of  the 
sea  to  a  system,  and  adopted  codes  of  maritime  regulations,  having 
been  countries  in  which  the  Roman  or  civil  law  prevailed,  the  prin- 
ciples of  that  great  system  of  jurisprudence  were  incorporated  with, 
and  gave  character  to,  the  maritime  law :  and  so  much  were  pure 
reason,  abstract  right,  and  practical  justice  mingled  in  that  system, 
and  so  important  was  it  that  the  general  maritime  law  should  be 
uniform  and  universal,  that,  in  England,  where  the  common  law 
was  the  law  of  the  land,  the  civil  law  was  held  to  be  the  law  of  the 
admiralty  and  the  course  of  proceedings  in  admiralty  closely  resem- 
bled the  civil  law  practice."^ 

§  3242.  Admiralty  jurisdiction — Controlled  by  maritime  laws. 
A  court  of  admiralty  is  a  court  of  the  law  of  nations,  and  in  one 
branch  of  its  jurisdiction,  that  of  prize,  both  the  law  and  jurisdic- 
tion are  derived  solely  from  the  laws  of  nations,  and  on  the  instance 
side  of  the  court,  in  many  cases,  as  when  the  controversy  is  between 
parties  of  different  nations,  its  rule  of  the  case  or  the  jurisdiction  of 
the  court  is  not  always  to  be  taken  from  the  municipal  law  of  either  of 
the  parties,  but  from  the  general  maritime  law  which  governs  all 
on  the  common  highway  of  nations.®  The  jurisdiction  of  the  District 
Courts  under  the  9th  section  of  the  judiciary  act  of  1789  has  been 
lield  to  embrace  all  cases  of  a  maritime  nature,  whether  of  an  ad- 
miralty cognizance  or  not.  This  jurisdiction  and  the  law  regulat- 
ing its  exercise  "are  to  be  sought  for  in  the  general  maritime  law  of 

V.   Culliford,  10  Fed.  388;    Enright,  States   v.    New    Bedford    Bridge,    1 

The.  12  Fed.  157;  Delovio  v.  Boit,  2  Woodb.   &   M.    (U.    S.)    401,  460,   27 

Gall.    (U.  S.)    398,   7   Fed.   Cas.  No.  Fed.  Cas.  No.  15867;  Clarke  v.  New 

3776;     Richard    Winslow,     The.    71  Jersey  &c.  Co.,  1  Story   (U.  S.)   531. 

Fed.   426;    Josephine,   In   re,   39   N.  ^Huntress,   The,  2  Ware    (U.   S.) 

Y.    19;    Warren    v.    Kelley,    80    Me.  89,106;   DeLovio  v.  Boit,  2  Gall.  (U. 

51-:,  15  Atl.  49.  S.)  398,  7  Fed.  Cas.  No.  3776. 
'Benedict  Adm.   Pr..   §   5;    United 


583  JURISDICTION   MUST  APPEAR.  [§§    3243,    3244. 

nations,  and  are  not  confined  to  that  of  England,  or  any  other  par- 
ticular maritime  nation."^ 

§  3243.  Jurisdiction  must  appear — Effect  of  tide. — It  must  appear 
on  the  face  of  the  proceedings  that  the  court  of  admiralty  had  juris- 
diction of  the  case.  But  tliis  jurisdiction  is  sometimes  a  question  of 
fact.  The  proper  practice  seems  to  be  to  set  up  the  want  of  juris- 
diction as  a  defense,  or  in  the  nature  of  a  plea  in  abatement  and  have 
the  question  determined  on  the  proof  introduced  on  the  issue  raised  by 
such  a  plea.  The  question  of  jurisdiction  in  cases  where  materials 
have  been  furnished  or  repairs  made  on  a  vessel  depends  generally  on 
its  location  or  position  at  the  time  such  materials  were  furnished  or 
such  repairs  were  made.  In  order  to  give  jurisdiction  to  the  ad- 
miralty court  the  proof  must  show  whether  the  vessel  at  the  time  was 
at  a  place  where  the  tide  ebbs  and  flows.  As  admiralty  jurisdic- 
tion depends  upon  location  and  is  determined  by  the  ebb  and  flow  of 
the  tide,  if  the  tide  has  any  influence  at  all  it  must  determine  the 
question.^"    ' 

§  3244.  Admiralty  law — Administered  in  the  United  States. — The 
statutory  regulations  of  maritime  laws  are  far  from  exclusive  in  the 
United  States.  It  has  been  the  constant  aim  of  the  courts  of  this 
country  to  apply  the  general  maritime  law  of  the  world  when  it 
could  be  done  without  infringing  or  violating  the  statutory  law  and 
the  usages  of  this  country.  At  the  same  time  the  courts  of  this 
country  have  not  imported  any  modern  codes  into  this  system.  Nor 
have  the  courts  of  this  country  been  bound  by  the  petty  jealousies  of 
common  courts  of  England  to  the  extent  of  unnecessarily  restricting 
the  law  of  the  admiralty.  This  principle  of  the  growth  of  admiralty 
jurisprudence  and  the  application  of  maritime  law  by  the  courts  of 
this  country  was  thus  stated  in  a  comparatively  recent  case,  "When- 
ever the  Supreme  Court  has  applied  the  general  maritime  law  to  cases 
arising  before  them,  it  will  be  observed  that  they  have  limited  them- 
selves to  that.  The  growth  of  admiralty  jurisprudence  within  this 
country  has  been  in  the  direction  of  the  freedom  from  the  confined 
limits  within  Avliich,  owing  to  the  well-known  jealousy  of  the  courts 
of  common  law  in  England,  the  law  of  the  admiralty  was  in  that 

»Seneca,  The.  3  AVall.  Jr.   (U.  S.)         "Planter,  The,  7  Pet.  (U.  S.)  324; 
395;  Lotta wanna.  The,  21  Wall.   (U.     Rex  v.  Smith,  2  Dong.  441. 
S.)  558;  St.  Lawrence,  The,  1  Black 
(U.  S.)   522,  526. 


§§  3245,  3246.]  admiralty  jurisdiction.  584 

country  restricted.  But,  while  our  admiralty  law  has  expanded  and 
developed,  and  this  by  the  application  of  the  general  maritime  law, 
our  Supreme  Court  has  carefully  kept  it  within  the  boundaries  of  the 
law  and  usages  of  this  country  and  has  not  imported  the  modem 
codes  into  our  system."^^ 

§3245.  Influence  of  constitution  and  statute  on  the  admiralty 
laws. — On  the  question  of  the  influence  of  the  constitution  and  statu- 
tory enactments  on  the  maritime  law,  the  Supreme  Court  say:  "As 
the  constitution  extends  the  judicial  power  of  the  United  States  to 
all  cases  of  admiralty  and  maritime  jurisdiction,  and  as  this  juris- 
diction is  held  to  be  exclusive,  the  power  of  legislation  on  the  same 
subject  must  necessarily  be  in  the  national  legislature,  and  not  in 
the  state  legislatures.  It  is  true,  we  have  held  that  the  boundaries 
and  limits  of  the  admiralty  and  maritime  jurisdiction  are  matters 
of  judicial  cognizance,  and  cannot  be  affected  or  controlled  by  legis- 
lation, whether  state  or  national.  But  within  these  boundaries  and 
limits  the  law  itself  is  that  which  has  always  been  received  as  mari- 
time law  in  this  country,  with  such  amendments  and  modifications 
as  congress  may  from  time  to  time  have  adopted. ^^ 

§  3246.  High  seas — Meaning. — The  jurisdiction  of  local  courts  in 
a  certain  class  of  cases  depends  on  whether  the  vessel  seized,  or  the 

"Butler  v.  Boston  &c.  Co.,  130  U.  6  How.   (U.  S.)   344;   Rich  v.  Lam- 

S.    527,   9   Sup.   Ct.    612;    American  bert,  12  How.   (U.  S.)   347;   Genesee 

Ins.   Co.  v.   Canter,   1   Pet.    (U.   S.)  Chief  v.  Pitzhugh,  12  How.   (U.  S.) 

511;   Waring  v.  Clarke,  5  Tow.    (U.  443;    Ward    v.    Peck,    18    How.    (U. 

S.)   441;   Lottawanna,  The,  21  Wall.  S.)     267;     Dupont    de    Nemours    v. 

(U.   S.)    558;    Steele  v.   Thacher,    1  Vance,  19  How.  (U.  S.)   162;  China, 

Ware  (U.  S.)  91;  Scotland,  The,  105  The,  7  Wall.   (U.  S.)   53;   Merrimac, 

IT.   S.    24.    To  this  point  the  court  The,  14  Wall.  (U.  S.)  199;  Sherlock 

cited  the  following  cases:     General  v.  Ailing,  93  U.  S.  99;    Scotia,  The, 

Smith,  The,  4  Wheat.    (U.  S.)   438;  14  Wall.  (U.  S.)  170;  Alabama,  The, 

St.  Jago  de  Cuba,  The,  9  Wheat.  (U.  92  U.   S.   695;    Atlas,  The,  93  U.   S. 

S.)    409;    United   States  v.  La  Ven-  302;  Virginia  Ehrman,  The,  97  U.  S. 

geance,  3  Ball.   (U.  S.)   297;   United  309;   North  Star,  The,  106  U.  S.  17, 

States  V.  Sally,   The,  2  Cranch    (U.  1  Sup.  Ct.  41. 

S.)    406;    United    States   v.    Betsey,         ^=  Butler  v.  Boston  &c.  Co.,  130  U. 

The,  4  Cranch  (U.  S.)  443;  Samuel,  S.    527,    9    Sup.    Ct.    612;    St.    Law- 

The,  1  Wheat.    (U.  S.)    9;    Octavia,  rence.    The.    1    Black    (U.    S.)    522, 

The,  1  Wheat.  (U.  S.)  20;  Hobart  v.  526;  Lottawanna,  The,  21  Wall.  (U. 

Drogan,  10  Pet.    (U.   S.)    108;    New  S.)  558. 
Jersey  &c.  Co.  v.  Merchants'  Bank, 


585  HIGH  SEAS.  [§  3246. 

collision  or  other  wrong  which  is  the  subject  of  the  action,  was  upon 
the  "high  seas"  or  within  a  particular  port.  Hence,  the  exercise  of 
jurisdiction  in  such  cases  depends  upon  the  proof,  and  it  therefore- 
becomes  important  to  know  the  meaning  of  "high  seas."  A  general 
definition  for  this  term  is  "all  waters  below  the  line  of  low  water 
mark  on  the  sea  coast  are  comprehended  within  that  description  and 
when  the  tide  flows  the  waters  to  high  water  mark  also  are  properly 
the  high  seas."^='  Lord  Hale  says  of  it,  "that  part  of  the  sea  which 
lies  not  within  the  body  of  a  country  is  called  the  main  sea  or  ocean." 
The  court  that  quoted  Lord  Hale  further  said :  "The  open  sea,  the 
high  sea,  the  ocean,  is  that  which  is  the  common  domain,  within  the 
body  of  no  country  and  under  the  particular  right  or  jurisdiction  of 
no  sovereign,  but  open,  free,  and  common  to  all  alike,  as  a  common 
and  equal  right.  The  expression  describes  the  open  ocean  where  the  do- 
minion of  the  winds  and  waves  prevails  without  check  or  control."" 
So  it  has  been  held  that  a  vessel  lying  outside  of  the  bar  of  an  harbor 
of  the  United  States,  within  three  miles  of  the  shore,  is  on  the  high 
seas.^^  In  its  ordinary  acceptance  the  term  is  held  to  mean  the  seas 
outside  low  water  mark  on  the  coast. ^"^  And  it  has  been  held  that 
the  waters  of  havens  where  the  tide  ebbs  and  flows  are  not  properly 
the  high  seas,  unless  they  are  without  low  Avater  mark.^^  And  the 
term   is  held  to   include  waters   on   the   sea   coast   outside   of   the 

i^Abby,  The,  1  Mason  (U.  S.)  360,  People,    7    N.    Y.    295;     Constable's 

1    Fed.    Cas.    No.    14;    De    Lovio    v.  Case,  5  Coke  106. 

Boit,  2  Gall.  (U.  S.)  398,  7  Fed.  Cas.  "United  States  v.  Morel,  26  Fed. 

No.  3776;    Gedney  v.  L'Amistad,  10  Cas.    No.    15807,    13   Am.    Jur.    279; 

Fed.  Cas.  No.  5294a;    Harriet,  The,  United  States  v.  Hamilton,  1  Mason 

1   Story    (U.   S.)    251,   11   Fed.   Cas.  (U.  S.)  152,  26  Fed.  Cas.  No.  15290; 

No.   6099;    United   States  v.   Crush,  United     States     v.     Wiltberger,     3 

5   Mason    (U.  S.)    290,   26  Fed.  Cas.  Wash.   (U.  S.)  515,  27  Fed.  Cas.  No. 

No.    15268,    1    U.    S.    Law    Int.    214;  16738. 

United  States  v.  Morel,  26  Fed.  Cas.  '=*  United  States  v.  Smith,  1  Mason 

No.  15807,  13  Am.  Jur.  279;   United  (U.  S.)  147,  27  Fed.  Cas.  No.  16337; 

States  v.  Seagrist,  4  Blatchf.  (U.  S.)  United     States     v.     New     Bedford 

420,  27  Fed.  Cas.  No.  16245;  United  Bridge,  1  Woodb.  &  M.  (U.  S.)   401, 

States  v.  Bevans,  3  Wheat.    (U.  S.)  27  Fed.  Cas.  No.  15867,  10  Law  R. 

336;    United    States    v.    Furlong,    5  127. 

Wheat.    (U.  S.)    184;    United   States  "^United     States     v.     Seagrist.     4 

V.    Coombs,    12    Pet.     ( U.    S.)     72:  Blatchf.    (U.    S.)    420,   27   Fed.   Cas. 

Waring  v.  Cla.rke,   5   How.    (U.   S.)  No.  16245. 

441;   United  States  v.  Rodgers,  150  '- United  States  v.  Hamilton,  1  Ma- 

U.  S.  249,  14  Sup.  Ct.  109;  Manley  v.  son    (U.   S.)    152,   26   Fed.   Cas.   No. 

15290. 


§    3247.]  ADMIRALTY    JURISDICTION.  586 

boundaries  of  low  water  mark.^^  It  has  been  held  that  the  term  does 
not  include  the  combined  salt  and  fresh  waters  which  at  high  tide 
flood  the  banks  of  an  adjacent  bay.^^  It  has  also  been  held  to  mean 
the  open  ocean  as  distinguished  from  a  river,  haven,  basin  or  bay.^° 
Mr.  Benedict  gives  the  following  definition:  "The  high  sea,  the 
open  sea,  are  phrases  used  to  distinguish  the  expanse  and  mass  of  any 
great  body  of  water,  from  its  margin  or  coast,  its  harbors,  bays, 
creeks,  inlets.  High  seas,  in  the  plural  number,  more  properly  mean 
the  oceanic  mass  of  waters,  which  is  composed  of  many  subdivisions 
of  seas  and  oceans."^^ 

§  3247.  High  seas — Great  lakes. — The  peculiar  phraseology  of  the 
United  States  statutes  has  given  rise  to  some  controversy  in  regard 
to  the  admiralty  jurisdiction  over  the  Great  Lakes.  The  jurisdic- 
tion conferred  by  the  statutes  extends  not  only  to  the  high  seas,  but 
to  any  arm  of  the  sea,  or  in  any  river,  haven,  creek,  basin  or  bay 
within  the  admiralty  jurisdiction  of  the  United  States  and  out  of  the 
jurisdiction  of  any  particular  state.  In  discussing  the  question  of 
admiralty  jurisdiction  over  the  Great  Lakes  the  Supreme  Court  of 
the  United  States  said:  "These  lakes  are  in  truth,  inland  seas. 
Different  states  border  on  them  on  one  side  and  a  foreign  nation  on 
the  other.  A  great  and  growing  commerce  is  carried  on  upon  them 
between  different  states  and  a  foreign  nation  which  is  subject  to  all 
the  incidents  and  hazards  that  attend  commerce  on  the  ocean.  Hos- 
tile fleets  have  been  encountered  on  them,  and  prizes  been  made, 
and  every  reason  which  existed  for  the  grant  of  admiralty  jurisdic- 
tion to  the  general  government  on  the  Atlantic  seas  applies  witli 
equal  force  to  the  lakes.  There  is  an  equal  necessity  for  the  instance 
and  for  the  prize  power  of  the  admiralty  court  to  adminster  inter- 
national law,  and  if  the  one  cannot  be  established,  neither  can  the 
other."' ^  In  a  later  case  the  same  court  expressly  held  that  the  term 
"high  seas"  was  applicable  to  the  open,  unenclosed  waters  of  the 
Great  Lakes. ^^    But  in  cases  originating  where  the  vessel  was  in  any 

"  Ross,    In   re,   140   U.   S.   453,   11  "'  Benedict  Adm.  Pr.,  §  224. 

Sup.   Ct.   897;    Byers,   Ex   parte,   32  ^2  Qenesee    Chief,    The,    12    How. 

Fed.  404;   United  States  v.  Ross,   1  (U.    S.)    443,    453;     Illinois    &c.    R. 

Gall.    (U.  S.)    624,  27  Fed.  Cas.  No.  Co.   v.   Illinois,   146   U.   S.   387,   435, 

16196.  13  Sup.  Ct.  110.    See,  Eagle,  The,  8 

"Morgan     v.     Nagodish,     40     La.  Wall.  (U.  S.)  15. 

An.  246,  3  So.  636.  ^  United  States  v.  Rodgers,  150  U. 

=»  Emory     v.     Collings,     1     Harr.  S.  249,  14  Sup.  Ct.  109. 
(Del.)  325. 


587  GREAT  LAKES.  [§  324T. 

arm  of  the  sea,  or  any  river,  haven,  creek,  basin  or  bay,  in  order  to 
confer  jurisdiction  on  admiralty  courts  the  proof  must  show  that 
such  vessel,  at  the  time  of  the  alleged  offense,  was  outside  of  the 
jurisdiction  of  any  state;  hence,  the  admiralty  jurisdiction  was  held 
to  extend  to  offenses  committed  "on  a  vessel  belonging  to  a  citizen 
of  the  United  States,  when  such  vessel  is  in  the  Detroit  Eiver,  out 
of  the  jurisdiction  of  any  particular  state,  and  within  the  territorial 
limits  of  the  Dominion  of  Canada.-'*  But  under  a  later  statute  it 
has  been  held  that  the  admiralty  jurisdiction  of  one  district  court 
of  the  United  States  did  not  extend  to  offenses  committed  on  a  vessel 
on  one  of  the  Great  Lakes  within  the  jurisdiction  of  another  district 
court.^"^ 

-*  United    States   v.    Rodgers,    150  district  court  for  the  Eastern  Dis- 

U.  S.  249,  14   Sup.  Ct.  109;    Robert  trict  of  Michigan.    Byers,  Ex  parte. 

Holland,   The,   59   Fed.    200;    North  32  Fed.  404;   Henry  Miller's  Case.  1 

Star,  The,  10  C.  C.  A.  262,  62  Fed.  Bro.  Adm.  156.   See,  People  v.  Tyler. 

71;  Bigelow  v.  Nickerson,  17  C.  C.  A.  7  Mich.  161. 

1,  70  Fed.  113.    A  contrary  holding  '^  United    States    v.    Peterson,    04 

was  made  in  an  earlier  case  in  the  Fed.  145. 


CHAPTEE  CLIX. 

ADMIRALTY    PRACTICE. 

Sec.  Sec. 

3248.  Nature — Generally.  3254.  Proceedings  yield   to   circum- 

3249.  Nature  of  admiralty  cases.  stances. 

3250.  Courts  of  admiralty  resemble  3255.  Proceedings    not    included    in 

courts  of  equity.  statutes      unless      expressly 

3251.  Equitable     principles     applied  named. 

in  cases  of  negligence.  3256.  Evidence    of    usage  —  Sailing 

3252.  Flexibility  of  admiralty  courts  rules. 

— Admissibility  of  evidence.     3257.  Judicial  notice. 

3253.  Liberal  rules  of  evidence.  3258.  Foreign  laws — When  proof  re- 

quired. 

§  3248.  Nature — Generally. — From  the  very  nature  of  the  case 
admiralty  courts  are  not  creatures  of  statutes.  They  have  become  in 
America,  to  some  extent,  subject  to  statutory  control  but  the  law 
is  administered  in  much  the  original  and  universal  way.  While 
it  followed  the  civil  law  in  its  origin  and  general  characteristics 
and  has  felt  the  touch  of  the  common  law,  it  is  of  necessity  in  the 
nature  of  equity.  It  could  scarcely  exist,  much  less  grow  were  it  ad- 
ministered according  to  the  strict  rules  of  statutory  regulation.  The 
imiversal  respect  it  has  gained  and  its  general  application  in  all 
civilized  countries  are  due  to  tne  peaceful  and  equitable  principles 
applied  in  controversies  arising  between  persons  of  different  nation- 
ality and  citizens  of  different  countries.  On  the  nature  of  admiralty 
practice  Mr.  George  Ticknor  Curtis  said:  "The  Admiralty  should 
be  otherwise  known  than  as  a  court  of  curious  learning,  where  con- 
troversies are  determined  upon  principles  and  under  forms  which, 
to  the  popular  feelings,  are  unusual,  abstruse,  or  difficult  of  appre- 
hension. Its  process  and  forms  are  indeed  in  many  respects  different 
from  the  common  law,  the  administration  of  which  is  most  generally 
familiar  to  the  people  of  the  United  States.  But  one  of  its  main 
and  most  characteristic  features  is  that  it  is,  to  the  extent  of  its 
jurisdiction,  a  court  of  equity.  It  entertains  pleas  of  part  perform- 
ance, and  decreed  an  instrument  to  be  good  in  part  and  bad  in  part,. 

588 


.-,89  NATUUE    OF    ADMIKALTY    CASES.  [§§    3249,    3250. 

as  the  fact  and  equity  of  the  case  may  be.  It  annuls  positive  con- 
tracts improvidently  entered  into  by  its  "ward,"  tlie  seaman,  and  is 
not  restrained  from  his  protection  by  the  binding  sanctity  of  a  seal. 
It  rejects  altogether  in  its  pleadings  the  technical  niceties  of  the 
common  law,  and  requires  only  that  the  substantial  merits  should 
be  set  forth,  in  forms  that  are  peculiar,  indeed,  but  wholly  liberal 
and  unembarrassing.  In  the  construction  of  contracts  it  seeks  to  com- 
bine the  intention  of  the  parties  and  actual  justice  in  the  result 
of  their  controversies."^ 

§  3249.  Nature  of  admiralty  cases. — Civil  actions  in  admiralty 
are  in  the  nature  of  proceedings  in  rem.  In  such  actions  there 
is  seldom  a  personal  defendant.  The  advantage,  if  not  the  necessity 
of  the  nature  of  such  proceedings  is  found  in  the  fact  that  a  valid 
title  against  all  the  world  is  transferred  to  the  purchaser  at  a  sale 
under  a  decree  or  order  of  the  admiralty  court.  This  principle  has 
been  distinctly  recognized  by  the  United  States  Supreme  Court  thus : 
"The  distinguishing  and  characteristic  feature  of  such  suit  is  that 
the  vessel  or  thing  proceeded  against  is  itself  seized  and  impleaded 
as  the  defendant,  and  is  judged  and  sentenced  accordingly.  It  is 
this  dominion  of  the  suit  in  admiralty  over  the  vessel  or  thing  itself 
which  gives  to  the  title  made  under  its  decrees  validity  against  all 
the  world."2 

§3250.  Courts  of  admiralty  resemble  courts  of  equity. — It  may 
be  stated  as  a  general  proposition  that  the  rules  of  admiralty  in  a 
general  way  resemble  those  of  other  courts.  The  same  could  be  said 
of  courts  of  law  and  courts  of  equity.  But  in  many  respects  courts 
of  law  and  courts  of  equity  differ,  and  in  all  such  points  of  difference 
the  practice  of  the  admiralty  resembles  that  of  equity.  Indeed, 
there  is  greater  difference  between  courts  of  law  and  admiralty  than 
between  law  and  equity.  The  processes  and  modes  of  admiralty, 
both  of  practice  and  decisions,  are  said  to  be  equitable.^'  On  this  sub- 
ject one  district  court  said :  "A  court  of  admiralty  is,  as  to  all  matters 
falling  within  its  jurisdiction,  a  court  of  equity.  Its  hands  are  not 
tied  up  by  the  rigid  and  teclinical  rules  of  the  common  law,  but  it 
administers  justice  upon  the  large  and  liberal  principles  of  courts 

^  1  Ency.  PI.  &  Pr.  251.  *  Richmond   v.    New    Bedford   &c. 

*  Moses  Taylor,  The,  4  Wall.    (U.     Co.,  2  Low.  (U.  S.)  315. 
S.)  411. 


§    3251.]  ADMIRALTY    PKACTICE.  590 

which  exercise  a  general  equity  jurisdiction."*  This  principle  was 
further  stated  thus:  "A  Court  of  Admiralty  is  a  Court  of  Equity. 
Extreme  powers  of  a  peculiar  character  have  been  conferred  upon  it, 
to  enable  it  to  determine  speedily  and  with  the  least  possible  ex- 
pense, by  means  of  simple  methods,  all  questions  which  may  arise 
in  respect  to  affairs  of  the  sea.  Not  only  has  it  the  power  but  it 
is  charged  with  the  duty  of  devising  methods  by  which  all  questions, 
of  which  it  can  take  cognizance,  can  be  adjudicated  speedily  and 
justly."^  Of  the  difference  in  these  courts  Mr.  Story  said:  "No 
proceedings  can  be  more  unlike  than  those  in  the  common  law  and 
in  admiralty.^'^  Of  this  nature  of  the  admiralty  practice  Lord 
Stowell  said:  "This  court  certainly  does  not  claim  the  character 
of  a  court  of  general  equity;  but  it  is  bound  by  its  commission  and 
constitution,  to  determine  the  cases  submitted  to  its  cognizance  upon 
equitable  principles,  and  according  to  the  rules  of  natural  justice.'"' 
But  the  courts  of  admiralty  have  never  adopted  and  do  not  recog- 
nize the  equity  rule  which  requires  two  witnesses,  or  one  witness 
and  strong  corroborative  circumstances  in  order  to  overcome  the 
verified  answers  of  another.^ 

§  3251.     Equitable  principles  applied  in  case  of  negligence. — One 

of  the  best  illustrations  of  the  application  of  the  equitable  principles 
of  admiralty  courts  is  found  in  the  nature  of  the  relief  granted  in 
cases  of  collisions  on  account  of  negligence,  and  more  especially 
in  eases  where  it  appears  that  both  vessels  have  been  at  fault.  In 
such  cases  admiralty  courts  have  adopted  the  equitable  rule  that 
where  the  proof  shows  that  both  vessels  are  in  fault  the  damages 
shall  be  equally  apportioned  between  the  offending  vessels.^   The  rule 

*  David  Pratt,  The,  1  Ware  (U.  S.)  mond    v.    New    Bedford    &c.    Co.,    2 

509;  Brown  V.  Lull,  2  Sumn.  (U.  S.)  Low.    (U.    S.)    315;    Brown   v.   Bur- 

443;  Fortitudo,  The,  2  Dod.  58;   Co-  rows,  2  Blatchf.   (U.  S.)  340,  4  Fed. 

gnac.  The,  2  Hagg.  Adm.  377;   Vir-  Cas.  No.   1995;   Benedict  Adm.   Pr., 

gin,  The,  8  Pet.  (U.  S.)  538,  550.  §  358. 

'Copp  V.  Decastro  &c.  Co.,  8  Ben.  ^Sherwood  v.   Hall,  3   Sumn.    (U. 

(U.   S.)    321;    Harden  v.   Gordon,   2  S.)    127;   Jay  v.  Almy,  1  Woodb.  & 

Mason    (U.  S.)    541,  556;    Brown  v.  M.  (U.  S.)  262;  Hutson  v.  Jordan,  1 

Lull,  2  Sumn.   (U.  S.)   443;  Juliana,  Ware  (U.  S.)  385. 

The,  2  Dod.  504.  "Continental,    The,    14    "Wall.    (U. 

« Adeline,  The,  9  Cranch    (U.  S.)  S.)  345;  Explorer,  The,  20  Fed.  135; 

244,  284.  Wanderer,    The,    20    Fed.    140.     See 

'Juliana,    The,    2    Dod.    504,    521;  §§3372-3374. 
Fortitudo,  The,  2  Dod.  58,  70;  Rich- 


591  ADMISSIBILITY    OF   EVIDENCE.  [§    3252. 

applies  where  it  is  sliown  that  both  vessels  are  in  fault  but  only 
one  of  them  is  injured,  as  well  as  to  cases  where  both  vessels 
are  injured.  In  such  cases  the  rule  as  to  the  application  of  damages 
is  that  where  both  vessels  are  injured,  the  damages  suffered  by  the 
two  are  added  together  and  equally  divided  and  the  vessel  wliose 
damage  exceeds  the  one-half  is  entitled  to  recover  the  excess  against 
the  other.  Where  one  vessel  only  is  injured  it  is  entitled  to  recover 
one-half  of  its  damages.^"  The  same  principle  was  a])plied  in  a  case 
of  personal  injury  where  the  proof  showed  negligence  of  both  par- 
ties." 

§  3252.  Flexibility  of  admiralty  courts— Admissibility  of  evi- 
dence.— The  flexibility  of  the  courts  of  admiralty  is  further  extended 
to  the  admissibility  of  evidence  arising  from  the  nature  of  these 
courts  and  the  jurisdiction  exercised  by  them.  It  is  a  principle  of 
these  courts  to  proceed  with  the  utmost  expedition,  and  the  fact 
that  the  cases  arising  may  occur  upon  the  high  seas  and  in  all  parts 
of  the  world,  coupled  with  the  further  fact  that  the  subject  matter 
of  the  litigation  and  the  witnesses  are  constantly  employed  in  voy- 
ages that  involve  perhaps  thousands  of  miles  of  travel  and  many 
months  and  possibly  years  of  absence,  all  require  that  these  courts 
must  proceed  with  the  greatest  possible  dispatch  and  that  tliey  must 
at  times  necessarily  admit  evidence  that  in  strict  courts  of  law  would 
be  of  doubtful  competency.  This  principle  was  well  stated  l)y  Dr. 
Lushington :  "This  power  of  the  admiralty  to  adapt  itself  to  the  vary- 
ing necessities  of  the  case  extends  also  to  the  form  as  well  as  the 
remedy  to  be  administered  in  the  proceedings.  Upon  this  principle 
it  has  accordingly  been  held  that  admiralty  has  an  undisputed  juris- 

'» Catherine,  The  v.  Dickinson,  17  S.  302;    Jimiata,  The,  93  U.  S.  337; 

How.    (U.    S.)    170;    Rogers   v.    St.  Stephen  Morgan,  The,  94  U.  S.  599; 

Charles,     The,     19     How.     (U.     S.)  Virginia  Ehrman,     he,  97  U.  S.  309; 

108;    Chamberlin  v.  Ward,  21  How.  City  of  Hartford,  The,  97  U.  S.  323; 

(U.    S.)    548;    Washington,    The,    9  Civilta,  The,  103  U.  S.  699;  Connect- 

Wall.    (U.    S.)    513;    Sapphire,   The,  icut.    The    103    U.    S.    710;     North 

11  Wall.  (U.  S.)  164;  Ariadne,  The,  Star,    The,   106   U.    S.    17:    Sterling. 

13  Wall.    (U.  S.)    475;    Continental,  The,  106  U.  S.  647;   Manitoba,  The, 

The,  14  Wall.   (U.  S.)   345;   Atlee  v.  122  U.  S.  97. 

Packet  Co.,   21  Wall.    (U.   S.)    389;         '^  Max   Morris,  The,   137   U.   S.   1, 

Teutonia.  The,  23  Wall.   (U.  S.)   77;  11  Sup.  Ct.  29,  28  ted.  881;  Dayles- 

Sunnyside,  The,  91  U.  S.  208;  Amer-  ford.  The.  30  Fed.  633;   Truro,  The, 

ica.    The,    92    U.    S.    432;    Alabama,  31   Fed.  158:    Serapis.  The,  49  Fed. 

The,  92  U.  S.  695;  Atlas,  The,  93  U.  393:  City  of  Rome.  The,  49  Fed.  392. 


g    3253,]  ADMIRALTY    PRACTICE.  592 

diction  in  rem  as  well  as  in  personam,  and  for  the  purpose  of  pro- 
tecting the  rights  of  parties  whether  in  cases  of  prize,  bottomry, 
salary,  or  to  cases  of  wages  will  permit  an  action  to  be  changed  from 
one  in  personam  to  one  in  rem  and  will  adjudge  accordingly."^ - 

§  3253.     Liberal  rules  of  evidence. — Admiralty  courts  adopt  the 
most  liberal  rules  on  the  admissibility  of  evidence.    The  reasons  for 
this  are  obvious  and  are  justified  by  the  necessities  of  a  great  ma- 
jority of  the  cases  in  these  courts.    This  general  principle  is  stated 
by    Dr.    Lushington   thus:     "The   cases   over   which   the    courts    of 
admiralty  exercises  jurisdiction  occur  in  all  parts  of  the  world,  on 
the  high  seas  and  in  remote  places.    It  is  a  well-known  principle, 
confirmed  by  authority,  that  courts  of  admiralty  are  to  proceed  levato 
velo,  that  is,  with  the  utmost  expedition.    In  order  to  carry  this 
principle  into  effect,  this  court  has  both  in  prize  matters  and  civil 
suits  been  accustomed  to   receive  evidence  which  would   not  have 
been  admitted  in  other  courts."    The  able  jurist  justifies  his  course 
and  states  his  conclusions  as  follows:  (1)   The  practice  of  my  prede- 
cessors.   (2)    The  nature  of  the  cases  as  tried,  occurring  in  all  parts 
of  the  globe.     (3)   The  difficulty  of  getting  witnesses,  when  those 
concerned  are  alone  present,  and  even  those  persons  never  stationary, 
but  traversing  the  seas  in  all  directions.    (4)   The  immense  expense 
and  delay  which  would  be  incurred   from  the  rigid   adherence  to 
rules  most  proper  elsewhere.     (5)   I  think  the  court  may  be  safely 
trusted  to  weigh  evidence  that  might  not  be  so  safe  to  leave  to  a 
jury.^^   The  courts  of  this  country  have  gone  equally  far  and  as  stated 
by  one  judge,  "courts  of  admiralty  are  not  bound  by  all  the  rules 
of  evidence  which  are  applied  in  the  courts  of  common  law,  and 
they  may,  where  justice  requires  it,  take  notice  of  matters  not  strictly 
proved."^*    Upon  these  principles  it  has  been  held  that  commercial 
documents  may  be  admitted  in  evidence  without  formal  proof  in 
cases  of  emergency. ^^    But  it  seems  that  the  rules  of  the  common 
law  as  to  the  competency  and  incompetency  of  witnesses  have  been 

"Sheppard  v.  Taylor,  5  Pet.   (U.  (U.    S.)    53;    Harriet,    The,    Olcott 

S.)  675;  Copp  v.  Decastro  &c.  Co.,  8  (U.  S.)   222,  11  Fed.  Cas.  No.  6096; 

Ben.  (U.  S.)  321;  One  Hundred  and  Vivid,  The,  4  Ben.    (U.  S.)   319. 

Eighteen  Sticks  of  Timber,  10  Ben.  "J.  P.  Spencer,  The,  3  Ben.    (U. 

(U.  S.)  86.  S.)    337;    Boskenna    Bay,    The,    22 

« Peerless,    The,    Lush.    Adm.    30,  Fed.  662. 

41;   J.  P.  Spencer,  The,  3  Ben.   (U.  ^=^  Boskenna  Bay,  The,  22  Fed.  662; 

S.)    337;   Elwell  v.  Martin,  1  Ware  Brown  v.  Thornton,  6  A.  &  E.  185. 


/)03  LIBERAL    RULES    OF    EVIDENCE.  [§§    3354,    3355. 

adopted  in  the  court  of  admiralty  in  the  exercise  of  its  jurisdiction, 
as  an  instance  court. ^"^  But  under  the  statutes  of  the  United  States 
there  is  no  longer  any  exclusion  of  witnesses  on  account  of  color, 
nor  in  civil  actions  because  he  is  a  party  to  or  interested  in  the 
action. ^■^  Thus  under  the  rules  of  admiralty  practice  hearsay  testi- 
mony is  from  necessity  frequently  admitted.^*  This  rule  has  been 
extended  to  the  point  of  holding  a  bottomry  proof  on  simply  tlie 
seal  of  the  consul.^"  And  a  copy  of  an  entry  of  a  protest  has  been 
held  sufficient  on  the  certificate  of  a  notary  that  it  was  a  true  copy.-" 

§3254.  Proceedings  yield  to  circumstances. — x\s  elsewhere  sug- 
gested the  courts  of  admiralty  are  in  the  nature  of  equity  courts. 
Controversies  involving  maritime  matters  purely  are  triable  by  the 
judges  without  the  intervention  of  juries,  and  in  administering  the 
equitable  rights  of  the  parties  the  proceedings  are  made  sufficiently 
flexible  to  adapt  themselves  to  the  varying  nature  of  the  case  and 
to  the  administration  of  the  beneficent  rules  of  equity.  This  flexi- 
bility adapts  itself  to  the  circumstances  of  the  parties  and  their  wit- 
nesses and  administers  justice  to  suit  the  necessities  of  the  case.-^ 

§  3255.  Proceedings  not  included  in  statutes  unless  expressly- 
named. — Admiralty  proceedings  are  peculiar  to  tliemselvcs  and  are 
so  different  from  civil  cases  that  they  are  not  usually  included  in  stat- 
utes governing  civil  suits,  unless  particularly  mentioned.  Of  this  pecu- 
liar distinction  of  admiralty  cases  a  district  court  said  :  "They  are  pro- 
ceedings so  diverse  in  form  and  in  spirit  from  ordinary  civil  suits, 
and  are  applicable  to  classes  of  property,  of  persons,  and  of  obliga- 
tions, so  peculiar  in  their  character  and  their  necessities,  and  are  so 
seldom  in  the  mind  of  the  law  makers  in  passing  general  statutes, 
that  it  seems  to  be  proper  to  hold  as  a  general  rule  of  construction 
that,  unless  alluded  to  by  name  or  otherwise  necessarily  within  the 
])rovisions  of  any  particular  statute,  such  proceedings  will  be  deemed 
excluded."^-    In  speaking  of  the  nature  of  these  courts  Judge  Story 

*«  Boston,   The,   1    Sumn.    (U.   S.)  =°  London  Merchant.  The,  3  Ilagg. 

328.  Adm.   394;    Vivid,   The,   4   Ben.    (U. 

"United  States  v.  Ten  Thousand  S.)  319. 

Cigars,  Woolw.    (U.  S.)    123.  =' Benedict  Adm.  Pr.,  §  516;   Copp 

'^Estrella,  The,  4  Wheat.    (U.  S.)  v.  Decastro  &c.  Co.,  8  Ben.    (U.  S.) 

298,  306;  Vivid,  The,  4  Ben.  (U.  S.)  321;     Norwich    Co.    v.    Wright,    13 

319.  Wall.    (U.  S.)    104,   122. 

"Helgoland,     The,     Swabey     491,  "Atkins  v.  Fibre  &c.  Co..  1   Ben. 

496.  (U.  S.)  118. 

Vol.  4  Elliott  Ev. — 38 


§§  3256,  3257.]  admiralty  practice.  594 

said:  "The  court  of  prize  is  emphatically  a  court  of  the  law  of 
nations;  and  it  takes  neither  its  character  nor  its  rules  from  the 
mere  municipal  regulations  of  any  country."^^  And  it  has  at  least 
been  suggested  that  the  principles  of  the  common  law  as  to  process 
and  proceedings  have  no  application  in  courts  of  admiralty.^* 

§  3256.  Evidence  of  usage — Sailing  rules. — From  the  earliest 
history  of  navigation  there  have  existed  certain  regulations  for  the 
purpose  of  preventing  collisions  between  ships  sailing  the  seas  and 
engaged  in  maritime  commerce.  These  were  called  sea  laws,  and  in 
the  course  of  time  recognized  as  settled  usage  having  a  binding  and 
obligatory  effect.  Such  usages  existed  and  were  recognized  long  be- 
fore there  was  any  legislative  control  upon  this  subject.  The  courts 
of  both  law  and  admiralty  constantly  refer  to  the  established  usages 
of  the  sea  as  furnishing  the  rule  by  which  to  determine  whether  any 
fault  of  navigation  was  committed  and  who  was  responsible.  It  is 
true  that  laws  and  regulations  have  since  been  enacted,  and  where 
they  apply  they  must  be  looked  to  as  furnishing  the  sole  rule  for 
guidance.  But  where  they  do  not  apply  evidence  of  usage  is  ad- 
missible. The  rule  on  this  subject  has  been  aptly  stated  as  follows: 
"Sailing  rules  and  other  regulations  have  since  been  enacted;  and  it 
is  everywhere  admitted  that  such  rules  and  regulations,  in  cases 
where  they  apply,  furnish  the  paramount  rule  of  decision;  but  it 
is  well  known  that  questions  often  arise  in  such  litigations,  outside 
of  the  scope  and  operation  of  the  legislative  enactments.  Safe  guides, 
in  such  cases,  are  often  found  in  the  decisions  of  the  courts,  or  in 
the  views  of  standard  text-writers ;  but  it  is  competent  for  the  court, 
in  such  a  case,  to  admit  evidence  of  usage;  and,  if  it  be  proved  that 
the  matter  is  regulated  by  a  general  usage,  such  evidence  may  fur- 
nish a  safe  guide  as  the  proper  rule  of  decision."^^ 

§  3257.  Judicial  notice. — The  general  rule  of  judicial  notice  is 
applicable  to  courts  of  admiralty.^®  According  to  adjudicated  cases 
these  courts  take  judicial  notice  of  many  natural  phenomena  as  well 

« Adeline,  The,  9  Cranch   (U.  S.)  ^  City  of  Washington,  The,  92  U. 

244.  S.  31. 

=*  Clarke  v.  New  Jersey  &c.  Co.,  1  =»  Planter,  The,  7  Pet.  (U.  S.)  324, 

Story    (U.    S.)    531;    Manro    v.    Al-  342;  Apollon,  The,  9  Wheat.  (U.  S.) 

meida,  10  Wheat.   (U.  S.)  473;  Har-  362,  374. 
riet.    The,    Olcott    (U.    S.)     222,    11 
Fed.  Cas.  No.  6096. 


595  JUDICIAL   NOTICE — FOREIGN    LAWS.  [§    3258. 

as  geographical  positions  that  affect  navigation  generally,  and  which 
enter  as  an  element  in  the  determination  of  their  jurisdiction.  For 
this  purpose  the  courts  will  judicially  notice  that  New  Orleans  and 
New  York  Bay  are  within  the  ehb  and  flow  of  the  tide.  Thus  it  has 
been  held  that  the  court  would  judicially  notice  the  geographical 
position  of  Sandy  Hook.^^  And  it  has  been  held  that  the  court 
would  take  judicial  notice  that  the  voyage  of  a  vessel  up  the  Missis- 
sippi Eiver  was  above  the  ebb  and  flow  of  the  tide  and  that  wages 
arranged  during  such  voyage  could  not  be  considered  as  earned  in 
a  maritime  employment.^®  The  rule  as  to  this  jurisdiction  was 
thus  stated  by  Judge  Story:  "The  true  test  of  its  jurisdiction  in  all 
cases  of  this  sort  is,  whether  the  vessel  be  engaged,  substantially,  in 
maritime  navigation,  or  in  interior  navigation  and  trade,  not  on  tide 
waters.  In  the  latter  case,  there  is  no  jurisdiction.  So  that,  in  this 
view,  the  district  court  had  no  jurisdiction  over  the  steamboat  in- 
volved by  the  present  controversy ;  as  she  was  wholly  engaged  in  voy- 
ages on  such  interior  waters."-^ 

§3258.  Foreign  laws — ^When  proof  required. — The  general  rule 
that  a  foreign  law  to  be  available  must  be  pleaded  and  proved  pre- 
vails generally  in  the  courts  of  admiralty.^''  But  it  seems  that  this 
rule  of  practice  has  certain  marked  exceptions  in  the  admiralty 
courts  which  are  so  pronounced  as  to  make  it  practically  a  new 
rule.  This  general  rule  of  proof  in  admiralty  courts  is  limited  to 
the  pleading  and  proof  of  such  laws  of  foreign  nations  as  are  de- 
signed only  for  the  direction  of  their  own  affairs.  But  courts  of 
admiralty  will  take  judicial  notice  of  the  public  laws  of  a  foreign 
nation  on  subjects  of  common  interest  and  concern  to  all  nations 
and  especially  so  when  such  laws  are  promulgated  by  the  governing 
powers  or  the  executive  officers  of  any  country.  Chief  Justice  Mar- 
shall in  an  early  case  in  speaking  of  the  authorities  on  this  subject 
said:    "Several  have  been  quoted  (and  such  seems  to  have  been  the 

"United  States  v.  La  Vengeance,  How.  (U.  S.)  400;  Liverpool  &c.  Co. 

3  Ball.    (U.  S.)    297.  v.   Phenix   Ins.   Co.,   129  U.   S.   397; 

='Tliomas      Jefferson,      The,      10  Dainese  v.  Hale,  91  U.  S.  13;  Pierce 

Wheat.    (U.   S.)    428;    Planter,  The,  v.    Indseth,    106    U.    S.    546;    Pawa- 

7  Pet.  (U.  S.)  324,  342.  shick.    The,    2    Low.    (U.    S.)    142; 

=°  Orleans,   The,    11    Pet.    (U.    S.)  Lloyd  v.  Giiibert,  L.  R.  1  Q.  B.  115. 

175.  6  B.  &  S.  100;  Cridland,  Ex  parte,  S 

^°  Church    v.    Hubbart,    2    Cranch  Ves.  &  B.  95. 
(U.    S.)    187;    Ennis   v.    Smith.    14 


§    3258.]  ADMIRALTY    PliACTICE.  596 

general  practice) ,  in  which  the  marine  ordinances  of  a  foreign  nation 
are  read  as  law,  without  being  proved  as  facts.  It  has  been  said, 
that  this  is  done  by  consent ;  that  it  is  a  matter  of  general  convenience, 
not  to  put  parties  to  the  trouble  and  expense  of  proving  permanent 
and  well-known  laws  which  it  is  in  their  power  to  prove;  and  this 
opinion  is  countenanced  by  the  case  cited  from  Douglas.  If  it  be 
correct,  yet,  this  decree  having  been  promulgated  in  the  United 
States  as  the  law  of  France,  by  the  joint  act  of  that  department 
which  is  entrusted  with  foreign  intercourse,  and  of  that  which  is 
invested  with  the  powers  of  war,  seems  to  assume  a  character  of 
notoriety  which  renders  it  admissible  in  our  courts."^^ 

"Amelia,  The,  1  Cranch   (U.  S.)  U.  S.  397;  Maggie  Hammond,  Tlie,  9 

1,  38;  Bernard!  v.  Motteux,  2  Doug.  Wall.   (U.  S.)   435,  452;   Pawashick, 

574;   Maria,  The,  1  Rob.  Adm.  340;  The,  2  Low.  (U.  S.)  142;  Penhallow 

Scotland,  The,  105  U.  S.  24;   Liver-  v.  Doane,  3  Ball.  (U.  S.)  54,  91. 
pool  &c.  Co.  V.  Phenix  Ins.  Co.,  129 


CHAPTER  CLX. 


PLEADING   AND    PROOF. 


Sec. 

3259.  Proof  must  come  within   the 

issues. 

3260.  Parties  bound  by  allegations. 

3261.  Effect  of  variance. 

3262.  Omissions     and     variations — 

Effect. 

3263.  Amendments — When    allowed. 

3264.  Amendments — Time    of    mak- 

ing and  effect. 

3265.  Amendments — Not  allowed. 

3266.  Amendments  not  allowed — Il- 

lustrations. 


Sec. 
3267. 

3268. 
3269. 


3270. 
3271. 

3272. 


Amendments — Hearing  on  ap- 
peal. 

Evidence  heard  on  appeal. 

Amendments  on  appeal  and 
motion  to  examine  wit- 
nesses— Distinction. 

Pleadings  as  evidence. 

Admissions  in  pleadings — Ef- 
fect. 

Special  damages  —  Awarded 
under  general  pleading. 


§  3259.  Proof  must  come  within  the  issues. — The  strict  technical 
rules  of  pleading  adopted  and  practiced  in  common  law  courts  are 
not  strictly  adhered  to  in  courts  of  admiralty.  Yet  the  rule  in  ad- 
miralty practice  is  that  the  matters  in  controversy  must  be  distinctly 
propounded,  and  each  party  must  set  forth  by  plain  and  precise  al- 
legations the  grounds  on  which  he  asks  for  the  judgment  of  the 
court  in  his  favor,  as  well  to  disclose  to  the  adverse  party  the  points 
to  which  he  must  direct  his  proof,  as  to  enable  the  court  to  see  what 
is  in  controversy  between  them.  The  issues  are  determined  by  the 
distinct  allegations  on  one  side  and  the  contradictions  on  the  other, 
and  a  court  of  admiralty  will  not  go  outside  of  tlie  issues  thus 
formed.^  This  rule  has  been  more  aptly  stated  as  follows:  "The 
rules  of  pleading  in  the  admiralty  do  not  require  all  the  technical 
precision  and  accuracy  which  is  necessary  in  the  practice  of  the  courts 


'  Orne  v.  Townsend,  4  Mason  (U. 
S.)  541;  Soule  v.  Rodocanachi,  New- 
berry Adm.  504;  Boston,  The,  1 
Sumn.  (U.  S.)  328,  3  Fed.  Gas.  No. 
1673;  Treadwell  v.  Joseph,  1  Sumn. 
(U.    S.)    390;    Sarah    Ann,    The,    2 

597 


Sumn.  (U.  S.)  206;  Confiscation 
Cases,  The,  20  Wall.  (U.  S.)  92; 
William  Harris,  The,  1  Ware  (U. 
S.)  367;  Hays  v.  Pittsburgh  &c,  Co., 
33  Fed.  552. 


§  3260.] 


PLEADING    AND    PROOF. 


598 


of  common  law.  But  they  require  that  the  cause  of  action  should 
be  plainly  and  explicitly  set  forth,  not  in  any  particular  and  sacra- 
mental formula,  but  in  clear  and  intelligible  language,  so  that  the 
adverse  party  may  understand  what  is  the  precise  charge  which  he 
is  required  to  answer,  and  make  up  an  issue  directly  upon  the  charge. 
The  evidence  must  be  confined  to  the  matters  put  in  issue  by  the  par- 
ties, and  the  decree  must  follow  the  allegations  and  proofs."^  In  a 
somewhat  later  case  the  rule  was  thus  stated :  "A  cardinal  principle 
in  admiralty  proceedings  is,  that  proofs  cannot  avail  a  party  further 
than  they  are  in  correspondence  with  the  allegation  of  his  pleadings, 
and  that  the  decree  of  the  court  must  be  in  consonance  with  the 
pleadings  and  the  proofs."^  The  general  rule  is  that  no  evidence 
is  admissible  unless  it  comes  within  the  issues  made  by  the  pleadings 
and  there  must  be  a  substantial  agreement  between  the  pleadings 
and  the  proofs.* 

§  3260.  Parties  bound  by  allegations.— Following  the  practice  in 
all  other  courts  parties  are  bound  by  their  allegations  and  proofs, 
and  the  former  must  be  sustained  by  the  latter.^  "The  libelants 
must  recover  on  the  allegations  in  their  libel;  and  the  respondents 


*Jenks  v.  Lewis,  1  Ware   (U.  S.) 
51. 

^  Davis  V.  Leslie,  1  Abb.  Adm. 
123;  Hoppet,  The,  7  Cranch  (U.  S.) 
389;  Fashion,  The,  v.  Ward,  6  Mc- 
Lean (U.  S.)  195;  Rhode  Island, 
The,  01c.  (U.  S.)  505;  Boston,  The. 
1  Sumn.  (U.  S.)  328,  11  Am.  Jur. 
21,  3  Fed.  Cas.  No.  1673;  Sarah  B. 
Kennedy,  The,  29  Fed.  264;  Morton, 
The,  1  Brown  Adm.  137,  17  Fed. 
Cas.'  N.  9864;  Sarah  Ann,  The,  2 
Sumn.  (U.  S.)  206,  21  Fed.  Cas.  No. 
12342. 

*  Davis  V.  Leslie,  1  Abb.  Adm.  123, 
7  Fed.  Cas.  No.  3639;  Washington 
Irving,  The,  Abb.  Adm.  336,  29  Fed. 
Cas.  No.  17243;  Morton,  The,  Brown 
Adm.  137,  17  Fed.  Cas.  No.  9864; 
Kellum  V.  Emerson,  2  Curt.  (U.  S.) 
79,  14  Fed.  Cas.  No.  7669;  Campbell 
V.  Uncle  Sam,  The,  1  McAll.  (U.  S.) 
77,  4  Fed.  Cas.  No.  2372;  Turner  v. 
Black   Warrior,   1    McAll.    (U.    S.) 


181,  24  Fed.  Cas.  No.  14253; 
Kramme  v.  New  England,  Newb. 
Adm.  481,  14  Fed.  Cas.  No.  7930; 
Rhode  Island,  The,  01c.  505,  20 
Fed.  Cas.  No.  11745;  Sarah  Ann. 
The,  2  Sumn.  (U.  S.)  206,  21  Fed. 
Cas.  No.  12342;  United  States  v. 
Hunter,  Pet.  (U.  S.)  10,  26  Fed. 
Cas.  No.  15428;  Reppert  v.  Robin- 
son, Taney  492,  20  Fed.  Cas.  No. 
11703;  William  Harris,  The,  1  Ware 
373,  29  Fed.  Cas.  No.  17695;  Mc- 
Kinlay  v.  Morrish,  21  How.  (U.  S.) 
343;  Pope  Catlin,  The,  31  Fed.  408; 
Hays  V.  Pittsburgh  &c.  Co.,  33  Fed. 
552;  Earnwell,  The,  68  Fed.  228. 

^^  Morton,  The,  Brown  Adm.  137; 
Cambridge,  The,  2  Low.  (U.  S.)  21, 
4  Fed.  Cas.  No.  2334;  New  England. 
The,  Newberry  Adm.  481;  Dupont 
de  Nemours  v.  Vance,  19  How.  (U. 
S.)  162;  McKinlay  v.  Morrish,  21 
How.  (U.  S.)  343;  Earnwell,  The, 
68  Fed.  228. 


599  VARIANCE.  [§§  3261,  3'-362. 

must  rely  exclusively  on  the  grounds  they  have  selected  in  their  an- 
swer.'"' Evidence  offered  going  to  a  defense  which  is  not  pleaded 
must  be  excluded  according  to  the  rules  of  admiralty  pratice.^ 

§  3261.  Effect  of  variance. — The  admiralty  courts  almost  wholly 
disregard  the  rules  of  variance  as  practiced  and  applied  in  the  com- 
mon law  courts.  In  these  courts  there  is  no  doctrine  of  merely 
technical  variance.  The  rule  as  held  in  many  cases  is  that  no  effect 
is  allowed  to  a  variance  which  cannot  have  surprised  or  injured  the 
opposite  party.*  In  speaking  of  the  difference  between  the  rules 
on  this  subject  in  admiralty  and  the  common  law  courts,  a  federal 
judge  in  a  recent  case  said:  "Under  the  strict  rules  of  procedure 
of  the  common  law,  and  the  civil  law,  the  doctrine  of  secundum 
allegata  et  probata  is  conclusive,  and  upholds  the  arlntrary  rule  of 
proceeding  as  paramount  to  all  other  considerations.  But  the  prac- 
tice of  the  admiralty  courts  of  the  United  States  permits  of  more 
flexibility  of  procedure.  And  in  the  endeavor  to  determine  the  case 
submitted  to  it  upon  equitable  principles,  the  court  will  sometimes 
disregard  mere  technical  rules  and  forms,  and  look  only  to  the  rules 
of  natural  justice.  In  this  endeavor,  the  court  uses  its  reason  and  dis- 
cretion as  a  means  of  defeating  chicanery,  rectifying  mistakes,  sup- 
plying deficiencies  and  even  suggesting  to  the  party  the  means  of 
reconstructing  his  case,  if  necessary,  without  the  loss  of  such  real 
progress  as  he  may  have  already  made."^  The  courts  have  frequently 
held  that  there  are  no  technical  variances  or  departures  in  pleadings 
in  admiralty.^ ° 

§  3262.     Omissions  and  variations — Effect. — It  has  been  held  that 
an  omission  to  state  some  material  facts  will  not  be  permitted  to 

« Campbell  V.  Uncle  Sam,  1  McAll.  363,   5    Fed.   Cas.    No.    2879;    Craw- 

(U.  S.)    77;    Turner  v.  Black  War-  ford  v.  William  Penn,  3  Wash.    (U. 

rior,    1    McAll.    (U.    S.)     181.     See,  S.)  484,  6  Fed.  Cas.  No.  3373;  Henry 

Rich  V.  Lambert,   12  How.    (U.   S.)  v.    Curry,    Abb.    Adm.   433,    11    Fed. 

347.  Cas.  No.  6381. 

^Washington    Irving,    The,    Abb.  =» Davis  v.  Adams,  42  C.  C.  A.  493, 

Adm.  336,  7   N.  Y.  Leg.  Obs.   4,   29  102    Fed.    520;    Gazelle    and    cargo. 

Fed.   Cas.  No.   17243;    Penhallow  v.  The,  128  U.  S.  474,  9  Sup.  Ct.  139. 

Doane,  3  Ball.  (U.  S.)  54;  Swallow.  '"West  v.  Uncle  Sam,  McAll.    (U. 

The,  01c.   (U.  S.)   334;    Shady  Side,  S.)  505,  29  Fed.  Cas.  No.  17427;  Du- 

The,  23  Fed.  731;   White  v.  Ranier,  pont  de  Nemours  v.  Vance,  19  How. 

The,  45  Fed.  773.  (U.  S.)  162;  General  Meade,  The,  20 

'Clement.    The,    2    Curt.    (U.    S.)  Fed.  923. 


§§  3263,  3264.]  pleading  and  proof.  600 

work  any  injury  to  the  pleader  if  it  appears  to  the  court  that  the 
omission  was  not  purposely  or  designedly  made;  this  is  especially 
true  where  the  opposite  party  was  not  surprised  by  the  omission/^ 
This  rule  has  been  carried  to  the  extent  of  permitting  a  recovery 
in  collision  cases  on  proof  of  a  fault  different  from  that  alleged  in 
the  libel.  ^^  A  variation  sufficient  to  defeat  an  action  at  law  has 
been  held  to  be  disregarded  in  admiralty  in  a  case  where  substantial 
justice  could  be  done.^^ 

§  3263.  Amendments — When  allowed. — The  most  liberal  rules  as 
to  amendments  are  found  in  practice  in  admiralty  courts.  In  these 
courts  amendments  are  permitted  to  the  end  that  substantial  justice 
may  be  done  the  parties.  The  only  limitation  on  these  liberal  rules 
of  amendments  is  that  the  court  should  not  permit  the  party  to  be 
injured  by  the  proposed  amendment.  Such  amendments  are  not 
only  permitted  but  may  be  directed  or  required  by  the  court.  The 
object  or  purpose  of  this  rule  is  that  the  case  may  be  disposed  of 
upon  its  merits,  and  substantial  justice  be  meted  to  the  parties  with- 
out the  delay  of  another  hearing.^"* 

§  3264.  Amendments — Time  of  making  and  effect. — This  rule  of 
permitting  amendments  has  been  carried  to  the  extent  of  holding 
"that  in  order  that  substantial  justice  may  be  done,  the  court  will 
allow  amendments  to  be  made  even  at  the  hearing  of  an  appeal, 
taking  care  that  no  injury  be  done  to  either  party.    And  in  case  in- 

" Quickstep,  The,  9  Wall.   (U.  S.)  162;     Mary    Ann,    The,    8    Wheat. 

665;    Syracuse,    The,    12   Wall.    (U.  (U.   S.)    380;    Warren   v.   Moody,   9 

S.)     167;     Dupont    de    Nemours    v.  Fed.    673;    Morning    Star,    The,    14 

Vance,  19  How.    (U.   S.)    162;    Cole-  Fed.    866;     Samuel    Marshall,    The, 

man.  The,  Brown  Adm.  456,  6  Fed.  49  Fed.  754;   Pennsylvania,  The,  12 

Cas.No.  2981.  Blatchf.    (U.    S.)    67,    19    Fed.    Cas. 

"Cambridge,  The,  2  Low.   (U.  S.)  No.    10951;     Virginia    &c.    Ins.    Co. 

21,  4  Fed.  Cas.  No.  2334;   Iris,  The,  v.    Sundberg,    54    Fed.    389;     Rich- 

1  Low.  (U.  S.)  520,  13  Fed.  Cas.  No.  mond    v.    New    Bedford    &c.    Co.,    2 

7062;     Martin     Wyncoop,     The,     10  Low.     (U.    S.)     315,    20    Fed.    Cas. 

Blatchf.    (U.   S.)    167,   16   Fed.   Cas.  No.   11800;    Adeline,   The,  9  Cranch 

No.  9177.  (U.     S.)      244;      Caroline,     The,     7 

^='Talbott    V.    Wakeman,    23    Fed.  Cranch     (U.    S.)     496;     Anne,    The, 

Cas.  No.  13731a.  7  Cranch  (U.  S.)  576;  Edward,  The, 

"City    of    New    Orleans,    The,    33  1    Wheat.    (U.    S.)    261;    Newell    v. 

Fed.  683;  Charles  Morgan,  The,  115  Norton,  3   Wall.    (U.   S.)    257;    Cru- 

U.  S.  69,  5  Sup.  Ct.  1172;  Dupont  de  sader.  The,  1  Ware    (U.  S.)    437,  6 

Nemours  v.  Vance,  19  How.  (U.  S.)  Fed.  Cas.  No.  3456. 


601  AMENDMENTS.  [§    3205. 

juries  should  be  likely  to  ensue  from  allowing  amendments,  the  case 
would  be  continued  to  allow  the  party  to  take  such  evidence  as  he 
might  deem  material  on  the  new  issue.'" ^  Under  the  admiralty  rules 
amendments  in  matters  of  substance  may  be  made  on  motion  at  any 
time  before  final  decree.  But  what  amendments  may  be  allowed, 
and  under  what  circumstances  made,  and  the  manner  of  their  in- 
corporation into  the  record,  are  all  within  the  sound  discretion  of 
the  court,  subject  to  the  rules  of  practice.^"  Tliis  rule  is  so  liberal 
that  it  will  permit  parties,  after  hearing,  to  amend  the  pleadings 
so  as  to  embrace  the  proofs  offered,  which  did  not  support  the  al- 
legations of  the  libel  as  originally  drawn.' ^  Amendments  will  always 
be  permitted  for  the  purpose  of  changing  or  increasing  the  claim  for 
damages.'^  Wliere  objections  are  made  on  the  hearing  on  account  of 
defects  appearing  on  the  face  of  the  pleadings,  the  court  will  permit 
the  error  to  be  rectified  instanter.'^  So  pleadings  will  sometimes  be 
deemed  amended  as  a  matter  of  course.-"  And  where  an  answer  ad- 
mitted a  material  part  of  the  matter  stated  in  tlie  libel,  it  has  been 
held  that  by  leave  of  the  court  it  could  be  amended  by  withdrawing 
the  admission.  But  such  withdrawal  could  have  no  effect  on  the 
admission  as  evidence.  ^^ 

§  3265.  Amendments — Not  allowed. — While  tlie  doctrine  of 
amendments  in  admiralty  is  equitable  it  is  also  reasonable,  and  un- 
reasonable amendments  will  not  l)e  permitted.  Xor  will  amendments 
be  permitted  which  will  operate  unjustly  or  to  tlie  injury  of  the  ad- 
verse party.  The  rule  denying  the  right  to  amend  was  thus  stated 
by  one  district  judge:  "If  the  amendment  should  be  allowed,  the 
libelant  must,  at  the  same  time,  be  remitted  tf»  the  same  right  of 
exception  she  would  have  had  if  the  claim  had  been  originally  put 
in  as  amended.  This  would  present  a  new  issue,  and  one  of  a  pre- 
liminary and  dilatory  character,  and  that  after  a  hearing  has  been 

>5  Morton,  The,  1  Brown  Adm.  137,  ''^  McCready  v.  Brother  Jonathan, 

17  Fed.  Cas.  No.  9864;  Boston,  The,  15  Fed.  Cas.  No.  8732a;    J.  E.  Tru- 

1   Sumn.    (U.   S.)    328,   3   Fed.   Cas.  deau.   The,  4  C.  C.  A.  657,  54  Fed. 

No.  1673.  907. 

"Lamb  v.   Parkman,   21   Law  R.  ''Nevitt  v.    Clarke,   01c.    (U.    S.) 

(1859)    589,  1  West  L.   Mo.  159,   14  316,  18  Fed.  Cas.  No.  10138. 

Fed.  Cas.  No.  8019.  ="  Rhode  Island.  The,  17  Fed.  554; 

"Davis    v.    Leslie,    1    Abb.    Adm.  Maryland,  The,  19  Fed.  551. 

123,  7  Fed.  Cas.  No.  3639;    Davis  v.  =^' Kenah  v.  John  Markee,  Jr.,  The. 

Adams,  42  C.  C.  A.  493,  102  Fed.  520.  3  Fed.  45. 


§§  3266,  3267.]  pleading  and  proof.  602 

had  upon  the  merits.""  And  the  right  to  amend  has  been  denied 
where  the  material  facts  are  pleaded  and  the  knowledge  of  the 
grounds  relied  upon  by  the  opposite  party ;  in  such  a  case  an  amend- 
ment will  not  be  permitted  for  the  purpose  of  making  the  allegation 
correspond  with  the  proof  offered.^^  So,  the  court  has  refused  to 
permit  an  answer  to  be  amended  after  the  case  has  been  heard 
when  such  an  amendment  would  destroy  the  effect  of  an  admission 
relative  to  a  matter  which  had  been  the  principle  subject  of  con- 
troversy.^* 

§3266.  Amendments  not  allowed — Illustrations. — This  rule  of 
the  refusal  to  allow  amendments  was  applied  in  a  case  where  the  de- 
fendants by  their  answer  claimed  to  be  the  owners  of  the  property  in 
controversy,  and  on  failure  to  establish  such  ownership  by  proof  at 
the  trial  they  were  not  permitted  thereafter  to  amend  their  answer 
for  the  purpose  of  showing  that  they  were  mortgagees  out  of  posses- 
sion.^^ So  claimants  were  not  permitted  to  amend  to  the  extent  of 
changing  the  nature  of  their  claim,  where  such  an  amendment  would 
prejudice  the  rights  of  other  creditors.-**  So  an  amendment  will  be 
denied  which  seeks  to  introduce  new  and  inconsistent  grounds  where 
no  evidence  had  been  offered  upon  the  subject  and  the  witnesses  of  the 
adverse  party  had  been  excused.-^  So,  an  amendment  to  increase  the 
claim  which  was  not  asked  for  until  after  trial  and  apportionment  of 
damages,  and  where  the  claim  as  pleaded  had  been  twice  verified,  was 
denied.^® 

§  3267.  Amendments — Hearing  on  appeal. — The  liberal  rule  of 
amendments  in  admiralty  is  extended  to  hearings  on  appeal.  An  ap- 
peal in  admiralty  is  regarded  by  the  appellate  courts  as  equivalent  to 
a  new  trial,  and  they  exercise  great  liberality  in  permitting  both  new 
pleadings  and  new  proofs  in  furtherance  of  justice.     These  courts 

"  Prindiville,  The,  1  Brown  Adm.  670;     General     Sedgwick,     The,     29 

485,  19  Fed.  Cas.  No.  11435.  Fed.  606;  Zodiac,  The,  5  Fed.  220. 

=°Iola,    The,    11    N.   Y.   Leg.   Obs.  =^  Keystone,    The,    31    Fed.    412; 

263,  13  Fed.  Cas.  No.  7057.  lona.  The,  26  C.  C.  A.  261,  52  U.  S. 

^^Mary  C,  The,  1   Hask.    (U.   S.)  App.  199,  80  Fed.  933;  United  States 

474,  16  Fed.  Cas.  No.  9201;   Horace  v.  One  Hundred  Twenty-three  Casks 

B.  Parker,  The,  20  C.  C.  A.  572,  74  &c.,  1  Abb.  (U.  S.)  573,  27  Fed.  Cas. 

Fed.  640.  No.   15943;    Circassian,  The,   2  Ben. 

»  McCarthy  v.  Eggers,  10  Ben.  (U.  (U.  S.)  171,  5  Fed.  Cas.  No.  2723. 

S.)  688,  15  Fed.  Cas.  No.  8681.  =*  New  Haven  &c.  Co.  v.  Mayor,  36 

=«Alanson   Sumner,   The,   28   Fed.  Fed.  716, 


003  EVIDENCE   OX    APPEAL.  [§§   3268,   32G9. 

on  appeal  are  not  constrained  by  arbitrary  rules,  and  they  may  or 
may  not  receive  evidence  which  ought  to  have  been,  but  was  not 
produced  in  the  court  of  original  jurisdiction.  Where  it  was  shown 
to  the  court  on  appeal  that  the  appelhint  had  refused  to  appear  in  the 
district  court,  it  was  held  that  he  would  not  be  permitted  to  contest 
the  merits  of  the  decree  in  the  appellate  court.^"  The  practice  estab- 
lished by  some  of  the  earlier  cases  was  not  only  to  permit  amendments 
on  appeal,  but  to  permit  supplementary  libels  or  answers,  or  to  allow 
either  party  to  file  new  allegations  and  proofs,  especially  where  it 
is  clearly  established  that  the  knowledge  of  the  circumstances  had  been 
obtained  after  the  decree  of  the  district  court;  but  in  such  cases  the 
proof  was  confined  to  the  new  allegations,  or  to  those  of  which  no 
proof  had  formerly  been  given.^" 

§  3268.  Evidence  heard  on  appeal. — The  new  rule  is  substantially 
the  same  as  the  practice  has  always  been,  to  show  good  reasons  for  the 
admissibility  of  evidence  on  appeal  which  was  not  introduced  at  the 
original  hearing,  and  to  make  it  discretionary  with  the  court  to  hear 
such  evidence.^ ^  And  where  no  excuse  or  reason  is  shown  in  the  mov- 
ing papers  why  the  witnesses  were  not  examined  in  the  court  below  the 
court  may  refuse  to  permit  their  examination  on  appeal. ^^  The  author- 
ities clearly  show  that  ordinary  appeals  in  admiralty  are  not  heard  de 
novo  in  the  Supreme  Court  in  the  same  sense  or  to  the  same  extent  as 
in  cases  on  appeal  to  the  circuit  court.^^ 

§  3269.  Amendments  on  appeal  and  motion  to  examine  witnesses 
Distinction. — Tlie    Supreme    Court   seems   to   have    made   a    distinc- 

*»Farrell  v.   Campbell,   7   Blatchf.  328;    Coffin  v.  Jenkins.  3  Story    (U. 

(U.     S.)     158;     Flying    Fish,    The,  S.)    108;    Venezuela,    The,    3    C.    C. 

Brown  &  Lush.  436;    Osiris,  The,  2  A.    319,    52    Fed.    873;    Cushman    v. 

Hagg.    Adm.    135;    General    Palmer,  Ryan,   1    Story    (U.    S.)    91,    6    Fed. 

The,  2  Hagg.  Adm.  323;  Glenmanna,  Cas.  No.  3515. 

The,     Lush.     115,    122;     Farrell    v.  ^i  Venezuela,  The,  3  C.  C.  A.  319. 

Campbell,   7    Blatchf.    (U.   S.)    158;  52   Fed.   873;    Rose  v.   Himely,   Bee 

Samuel.  The,   1   Wheat.    (U.   S.)    9;  (U.  S.)   313;  Generous,  The,  L.  R.  2 

Mary,  The,   8  Cranch    (U.   S.)    388;  Ad.  &  El.  57;  Moorsley,  The,  1  Asp. 

Gray  Jacket,  The,  5   Wall.    (U.   S.)  471;   William,  The,  7  Ir.  Jur.  354. 

342;    Mabey,  The,  10  Wall.    (U.  S.)  =- Mabey,    The,    10    Wall.    (U.    S.) 

419;    Western    Metropolis,    The,    12  419. 

Wall.   (U.  S.)   389;   Juniata,  The,  91  =^  Lucille,   The.   19    Wall.    (U.    S.) 

U.  S.  366;  Venezuela.  The,  3  C.  C,  A.  73;    Mabey,   The,    10   Wall.    (U.   S.) 

319,  52  Fed.  873.  419;  Charles  Morgan,  The,  115  U.  S. 

**  Boston,   The,    1    Sumn.    (U.    S.)  75,  5  Sup.  Ct.  1172. 


§    3270.]  PLEADING   AND   PROOF.  604 

tion  between  amendments  on  appeal  and  motions  to  examine  wit- 
nesses in  the  appellate  court.  The  rule  as  to  amendments  was  thus, 
stated:  "There  can  be  no  substantial  amendments  in  this  court; 
but  if  the  pleadings  or  evidence  are  so  defective  that  no  decree  can . 
be  founded  upon  them,  and  the  case  appears  to  have  merits,  the 
court  will  reverse  the  decree  and  remand  the  cause  to  the  court  be- 
low with  directions  to  permit  the  amendments  and  further  proof.^* 

§  3270.     Pleadings  as  evidence. — The  authorities  are  not  unani- 
mous on  the  question  either  of  the  effect  or  the  admissibility  of  the 
answer  as  evidence.    It  would  seem  that  the  rule  in  chancery  and  the 
rule  in  admiralty  are  not  the  same.^^   The  rule  as  to  the  admissibility 
and  effect  of  pleadings  in  evidence  is  thus  stated:    "It  is  admitted 
that  the  sworn  answer  of  the  respondent  stating  in  detail  and  with 
exactness  the  matters  of  defense,  though  not  evidence  in  the  strict 
sense  of  the  word,  may  be  referred  to,  to  explain  ambiguities  in  the 
testimony  and,  in  aid  of  presumptions  arising  from  the  evidence,  to 
supply  connecting  links  in  the  proof ;  and  that  it  is  ordinarily  entitled 
to  more  consideration  than  the  naked  statement  of  a  party  unsup- 
ported by  his  oath.     But  the  degree  of  credit  allowed  to  an  answer 
in  this  respect  must  depend  on  the  apparent  good  faith  with  which 
it  is  made.     The  credit  of  an  answer  in  the  admiralty  is  not  meas- 
ured by  any  technical  rule,  as  it  is  in  equity.     And  as  it  derives  its 
credit  from  the  good  faith  of  the  respondent,  we  may  look  for  the 
evidence  of  that  good  faith,  not  only  to  the  answer  itself  but  to  all 
the  facts  in  the  cause  bearing  on  that  question."^'''     The  general  rule 
stated  by  a  recent  text-writer  is  as  follows :    "The  answer  to  the  libel 
has  no  more  force  as  evidence  than  the  libel  itself  has.    They  are  not 
evidence,  in  the  common  sense  of  the  word.     Being,  however,  the 
solemn  statement  of  facts  by  the  parties,  under  the  solemnity  of  an 
oath,  the  court  is  bound  to  examine  them  carefully,  and  it  is  impos- 
sible that  they  should  not  influence  the  mind  of  the  court;  in  many 
cases  of  nicely-balanced  proofs,  the  influence  of  the  pleadings  may 
well  turn  the  scale.""     The  Supreme   Court  stated  the  rule  thus: 

^Caroline,  The,  7  Cranch  (U.  S.)  55  Fed.  526;    Mabey,  The,  10  Wall. 

496;    Edward,    The,    1    Wheat.    (U.  (U.  S.)   419. 

S.)     261;    Divina    Pastora,    The,    4  ^'^  Hutson  v.  Jordan,   1   Ware    (U. 

Wheat.  (U.  S.)  52;  Mary  Ann,  The,  S.)  385. 

8    Wheat.     (U.    S.)    380;    Palmyra,  =«  Crusader,  The,  1  Ware   (U.  S.) 

The,   12   Wheat.    (U.    S.)    1;    Sarah  448.  6  Fed.  Cas.  No.  3456. 

Ann,   The,    2    Sumn.    (U.    S.)    206;  =' Benedict  Adm.  Pr.,  §  518. 
Beeche  Dene,  The,   5  C.  C.  A.   207, 


605  ADMISSIONS    IX    PLEADIXGS.  [§    3271. 

"The  answer  is  not  of  itself  evidence  to  establish  such  a  fact,  but  it 
must  be  made  out  by  due  and  suital)le  proofs;  for  in  the  admiralty 
the  same  rule  does  not  prevail  as  in  equity,  that  the  answer  to  mat- 
ters directly  responsive  to  the  allegations  of  the  bill,  is  to  be  treatori 
as  sufficient  proof  of  the  facts  in  favor  of  the  respondent,  unlei^s 
overcome  by  the  testimony  of  two  witnesses,  or  by  one  witness  and 
other  circumstances  of  equivalent  force.  The  answer  may  be  evi- 
dence, but  it  is  not  conclusive."^*  In  an  action  in  rem  an  earlier 
district  court  held  the  principle  that  the  answer  of  the  owners  which 
admitted  facts  to  their  prejudice  would  prevail  in  favor  of  the  libel- 
ants against  the  testimony  of  one  witness.^^  It  was  said  in  one  case 
that  a  verified  claim  in  admiralty  was  not  evidence;  that  it  was  no 
more  than  "the  exclusion  of  a  conclusion."^" 

§  3271.  Admissions  in  pleadings — Effect. — Neither  party  can  in- 
troduce evidence  to  contradict  the  averments  set  forth  in  his  plead- 
ing, and  the  adverse  party  is  entitled  to  accept  any  admissions  perti- 
nent to  the  issue  as  conclusive  against  the  party  making  them.  Thus, 
where  it  was  averred  that  the  steamboat  was  in  motion,  it  was  held 
that  the  pleader  was  precluded  from  denying  that  fact,  and  that  the 
adverse  party  was  not  required  to  produce  witnesses  to  show  a  differ- 
ent state  of  facts. ^^  And  admissions  in  an  answer  may  be  sufficient 
to  entitle  a  libelant  to  recover  the  amount  of  his  claim.'*-  In  the 
absence  of  a  replication  it  has  been  held  that  the  libelant  thereby 
admits  the  allegations  in  the  answer.*^  So,  it  has  been  held  that  the 
admissions  in  an  answer  will  prevail  against  the  testimony  of  the 
pilot  of  the  vessel.**     But  allegations  that  are  neither  admitted  nor 

=-' Andrews   v.    Wall,    3    How.    (U.  8,   6   McLean    (U.   S.)    152,    29    Fed. 

S.)  568;  Eadsv.  H.  D.  Bacon,  The,  1  Cas.  No.  17154;   Whitney  v.  Empire 

Newb.    274,    8    Fed.    Cas.    No.    4232;  State,   1   Ben.    (U.    S.)    57,    29    Fed. 

Jay  V.  Alray,  1   Woodb.  &   M.  262;  Cas.  No.  17586. 

United  States  v.  Matilda,  5  Hughes  ^- Belle,  The,  6  Ben.  (U.  S.)  287.  3 

(U.  S.)   44,  4  Hall  L.  J.  478,  Brun-  Fed.  Cas.  No,  1271. 

ner  Col.  Cas.  258,  26  Fed.  Cas.  No.  "  Mary  Jane,  The,  1  Blatchf .  &  H. 

15741;   2  Conklin  Adm.  620-622.  (U.  S.)   390,  16  Fed.  Cas.  No.  9215; 

=^«  Santa  Claus,   The,  01c.    (U.   S.)  Sea  Gull,   The,   Chase   145,   21   Fed. 

428.  Cas.  No.  12578;    Thomas  v.  Gray,  1 

"  Thomas,  The,  v.  United  States.  1  Blatchf.  &  H.  493,  23  Fed.  Cas.  No. 

Brook.  (U.  S.)  367,  23  Fed.  Cas.  No.  13898. 

13919.  "  Santa  Claus,  The,  1  01c.  428,  21 

"Totten    V.    Pluto,    24    Fed.    Cas.  Fed.  Cas.  No.  12327. 
No.  14106;  Ward  v.  Fashion,  Newb. 


§    3272.]  PLEADING    AND    TROOF.  GOG 

denied  cannot  be  taken  as  true.^^  So,  it  has  been  held  that  a  party 
may  use  one  admission  in  the  pleading  of  his  adversary  without  being 
bound  by  others.*"  The  admiralty  court,  like  other  courts,  cannot  de- 
termine the  amount  of  damages,  on  default,  from  the  allegations  of 
the  libel;  the  damages  must  be  determined  by  the  court  from  the 
evidence.*'' 

§  3272.  Special  damages — Awarded  under  general  pleading. 
Admiralty  courts  are  not  so  technical  as  to  require  special  damages 
to  be  specially  pleaded.  They  will  award  full  relief  on  general  aver- 
ments. The  rule  is  that  where  the  libelant  avers  with  distinctness 
the  substantive  facts  upon  which  he  relies  and  prays  either  specially 
or  generally  for  appropriate  relief  the  court  may  award  any  relief 
warranted  by  the  law  applicable  to  the  case.*^  It  is  held  that  ad- 
miralty courts  will  not  be  prevented  from  enforcing  equitable  rights 
and  plain  obligations  because  of  technical  objections  as  to  matter  of 
form  or  on  account  of  the  relief  demanded.*^  The  general  rule  is 
thus  stated :  "A  court  of  admiralty  is  not  limited  in  its  decree  to 
the  precise  amount  for  which  the  libel  is  entered.  When  it  appears 
on  investigation  that  the  libelant  has  merit,  and  that  justice  requires 
a  larger  renumeration  than  he  has  demanded  in  his  libel,  the  court 
is  not  precluded  by  any  technical  forms  from  doing  full  justice.^** 
The  general  rule  is  that  damages  will  be  awarded  under  prayer  for 
general  relief. ^^  But  it  is  held  that  the  court  cannot  grant  a  relief 
which  is  inconsistent  with  or  entirely  different  from  that  which  is 
asked  for.°^     And  the  proof  of  the  respective  parties  must  conform, 

*^  Clarke  v.   Dodge  Healy.   The,   4  2    Low.     (U.    S.)     21,    4    Fed.    Cas. 

"Wash.   (U.  S.)   651,  5  Fed.  Cas.  No.  No.     2334;     Dexter    v.     Munroe,     2 

2849;    Dictator,    The,    30    Fed.    699;  Sprague  (U.  S.)  39,  7  Fed.  Cas.  No. 

Venezuela,  The,  5  C.  C.  A.   159,   55  3863. 
Fed.  416.  *'■'  Dexter    v.    Munroe,    2    Sprague 

**  Berry    v.     Montezuma,     The,     3  (U.  S.)  39,  7  Fed.  Cas.  No.  3863. 
Fed.  Cas.  No.  1358a.  ="  Pratt   v.    Thomas,    1    Ware    (U. 

*■  Cape  Fear  &c.  Co.  V.  Pearsall,  33  S.)    427,    19    Fed.    Cas.    No.    11377; 

C.  C.  A.  161,  90  Fed.  435;   Miller  v.  McCready     v.      Brother     Jonathan, 

United  States,  11  Wall.  (U.  S.)  268;  The,  15  Fed.  Cas.  No.  8732a;  Grubbs 

Hightower     v.     Hawthorne,     Hemp.  v.  John  C.  Fisher,  The,  22  Pitts.  L. 

(U.  S.)   42,  12  Fed.  Cas.  No.  6478b.  J.  122;  Jonge  Bastiaan,  5  Rob.  Adm. 

'**  Gazelle  and   Cargo,   The,  128  U.  322. 
S.   474,   487,   9   Sup.   Ct.    139;    Syra-         "  Penhallow  v.  Doane,  3  Dall.  (U. 

cuse.    The,    12    Wall.    (U.    S.)    167;  S.)   54,  86. 

Dupont   de    Nemours   v.    Vance,    19         ^=  Wilson  v.  Graham,  4  Wash.   (U. 

How.   (U.  S.)  162;   Cambridge.  The,  S.)  53,  30  Fed.  Cas.  No.  17804. 


607  SPECIAL    DAMAGES.  [§    3272. 

within  limits  already  stated,  to  the  issues  tendered  by  their  plead- 
ings. In  other  words,  as  said  in  a  recent  case,  "the  defendant's  testi- 
mony must  accord  with  the  articles  of  the  answer  just  as  the  lebelant's 
testimony  must  follow  the  articles  of  the  libel.  The  parties  make  up 
their  issues,  and  must  stay  by  them  to  the  end.'"^ 

^•^  Barber    v.    Lockwood,    134    Fed.     §§3259,3260.    But  compare  §  3261. 
985,    986.     See    also,    McKinlay    v.     3275.  By  libelant. 
Morrish,  21  How.  (U.  S.)  243;  ante. 


CHAPTER  CLXL 

INTERROGATORIES. 

Sec.  ■  Sec. 

3273.  Practice — Generally.  3278.  Limitations. 

3274.  Time  of  delivering  interroga-     3279.  Materiality  of  interrogatories. 

tories.  3280.  Interrogatories   as   evidence. 

3275.  By  libelant.  3281.  Interrogatories     as     evidence 

3276.  By  defendant.  for  or  against  party. 

3277.  Office  of  interrogatories. 

§  3273.  Practice — Generally. — It  seems  to  be  the  universal  prac- 
tice in  admiralty  courts  for  one  party  to  obtain  evidence  by  means  of 
interrogatories  to  the  opposite  party  to  be  by  him  answered  under 
oath.  The  object  of  this  is  apparently  two-fold.  (1)  For  the  pur- 
pose of  obtaining  facts  to  fully  and  accurately  state  either  the  libel 
or  the  answer;  (2)  to  avoid  obtaining  or  producing  evidence  that 
may  be  admitted  or  given  in  answer  to  interrogatories  by  the  oppo- 
site party.  The  general  practice  as  to  submitting  interrogatories  in 
admiralty  courts  is  not  essentially  different  from  the  practice  in  other 
courts  both  in  England  and  America.  Mr.  Benedict  says  of  this 
subject:  "The  later  authorities  seem  to  have  settled  the  law  that 
the  answers  to  these  special  interrogatories  are  not  evidence  but  plead- 
ing."^ Either  party  may  propound  interrogatories  touching  the  mat- 
ter in  issue  and  append  them  to  his  pleading ;  these  the  adverse  party 
must  answer  under  oath,  or  the  matter  may  be  taken  against  him  pro 
confesso.- 

§  3274.  Time  of  delivering  interrogatories. — The  practice  or 
method  of  filing  interrogatories  is  governed  generally  by  the  admiralty 

'Benedict   Adm.   Pr.,    §    519.     For  Skinner,  2  Gall.    (U.  S.)    45,  9  Fed. 

questions  of  practice  and  forms  of  Cas.   No.   5210;    Scobel  v.   Giles,    19 

interrogatories,     see.     Appendix,     2  Fed.    224;    Edwin    Baxter,    The,    32 

Wheat.  (U.  S.)   81;  1  Rob.  381.  Fed.    296;    Havermeyers  &c.   Co.   v. 

-David    Pratt,    The,    1    Ware    (U.  Compania  &c.  Espanola,  43  Fed.  90; 

S.)   495,  7  Fed.  Cas.  No.  3597;  Aus-  Stoffregan  v.   Mexican  Prince,   The, 

tralia.  The,  3  Ware    (U.  S.)    240,   2  70    Fed.    246;    Admiralty   Rules    23, 

Fed.     Cas.     No.     667;     Gammell     v.  27,  30,  32. 

608 


G09  INTERROGATORIES — BY    LIBELAXT.  [§    3275. 

court  act  or  the  general  rules  of  the  court.  The  practice  for  deliver- 
ing interrogatories  is  thus  stated  l)y  a  writer  in  a  recent  work  on  ad- 
miralty practice  as  the  sum  of  the  rules:  "The  plaintiff  or  defend- 
ant, by  leave  of  the  court  or  judge,  may  deliver  interrogatories  in 
writing  for  the  examination  of  the  opposite  parties,  or  any  one  or 
more  of  such  parties,  and  such  interrogatories  when  delivered  shall 
have  a  note  at  the  foot  thereof,  stating  which  of  such  interrogatories 
each  of  such  persons  is  required  to  answer;  provided  that  no  party 
shall  deliver  more  than  one  set  of  interrogatories  to  the  same  party 
without  an  order  for  that  purpose;  provided  also  that  interrogatories 
which  do  not  relate  to  any  matters  in  question  in  the  cause  or  matter 
shall  be  deemed  irrelevant,  notwithstanding  they  might  be  admissible 
on  the  oral  cross-examination  of  a  witness."^  According  to  the 
rules  of  order  in  the  English  practice,  '"'the  plaintiff  may  at  tlie  time 
of  delivering  his  statement  of  claim,  or  at  any  subsequent  time  not 
later  than  the  close  of  the  pleadings,  and  a  defendant  may,  at  the 
time  of  delivering  his  defense,  or  at  any  subsequent  time  not  later 
than  the  close  of  the  pleadings,  •  without  any  order  for  that  purpose, 
and  either  party  may  at  any  time,  by  leave  of  the  court  or  a  judge, 
deliver  interrogatories  in  writing  for  the  examinations  of  the  oppo- 
site party  or  parties  or  any  one  or  more  of  such  parties."*  So,  it  has 
been  held  that  the  court  may  order  interrogatories  to  be  administered 
before  the  filing  of  the  petition,  where  the  court  is  of  the  opinion 
that  such  interrogatories  are  necessary  to  elicit  facts  in  the  case,  and 
are  within  the  scope  of  the  object  for  which  interrogatories  are  al- 
lowed.^ Where  interrogatories  are  delivered  by  the  plaintiff  before 
the  defendant  has  delivered  his  statement  of  defense,  it  has  been  held 
that  sufficient  reason  must  be  shown  for  delivering  them  at  such  a 
time  or  they  will  be  struck  out." 

§  3275.  By  libelant. — The  libelant  may  submit  interrogatories 
at  the  close  of  his  libel,  and  require  that  the  defendant  answer  the 
same  under  oath.  That  part  of  the  admiralty  rule  governing  the 
practice  on  the  part  of  the  libelant  is  stated  thus:  "iVnd  the  libel- 
ant may  further  require  the  defendant  to  answer  on  oath  all  inter- 
rogatories propounded  by  him  touching  all  and  singular  the  allega- 

3  Williams  &  Bruce  Adm.  Jur.  &  '  Murillo,  The,  1  Asp.  (N.  S.)  579. 
Pr.  410.  » Mercier  v.  Cotton,  L.  R.  1  Q.  B. 

♦  Bolckow  V.  Fisher,  L.  R.  10  Q.  B.      442. 
161;    Cashin    v.    Craddock,    L.    R.    2 
Ch.  Div.  140. 

Vol.  4  Elmott  Ev. — P,9 


§§  3276,  3277.]  interrogatories.  610 

tions  in  the  libel  at  the  close  or  conclusion  thereof."'^  The  rule  of 
practice  is  thus  stated  by  a  recent  writer  on  Admiralty:  "If  the 
libelant  desires  to  address  himself  to  the  conscience  of  the  defend- 
ant, and  to  compel  him  to  give  testimony  as  to  the  matters  in  contro- 
versy, he  may  close  his  libel  with  interrogatories,  touching  all  and 
singular  the  allegations  in  the  libel,  and  demand  that  the  defendant 
answer  them  under  oath.  The  practice  of  thus  inserting  proper 
interrogatories  tends  greatly  to  the  promotion  of  justice,  and  its 
prompt  and  economical  administration,  by  reducing  to  its  narrowest 
compass  that  portion  of  the  cause  which  is  to  occupy  the  time  of  the 
judge  and  the  witnesses  in  court."^ 

§  3276.  By  defendant. — The  defendant  has  the  same  right  as  the 
libelant  to  require  answers  to  interrogatories  which  he  may  at  the 
close  of  his  answer  propound  to  the  libelant  touching  any  matter 
charged  either  in  the  libel  or  set  up  as  a  defense  in  his  answer."  The 
rule  is  more  fully  stated  by  Mr.  Benedict  as  follows :  "As  the  libel- 
ant has  the  right  to  propose  interrogatories  to  the  defendant,  so  the 
defendant  has  the  right  to  resort  to  the  oath  of  the  libelant,  and 
may,  at  the  close  of  his  answer,  propose  to  the  libelant  any  inter- 
rogatories touching  any  matters  charged  in  the  libel,  or  touching  any 
matters  of  defense  set  up  in  the  answer.  These  interrogatories  should 
be  numbered,  and  the  libelant  must  answer  in  writing  in  detail,  under 
oath  or  solemn  affirmation,  each  interrogatory  in  the  order  of  their 
numbers.  Like  the  defendant,  the  libelant  is  not  bound  to  answer 
any  interrogatory  which  will  expose  him  to  any  prosecution  or  punish- 
ment for  crime  or  any  penalty,  or  any  forfeiture  of  his  property  for 
any  penal  offense."" 

§  3277.  Office  of  interrogatories. — While  tlie  answers  to  interroga- 
tories may  serve  as  evidence  and  avoid  producing  witnesses  as  to  the 
matters  answered,  yet  the  interrogatories  have  and  perform,  a  dif- 
ferent office  or  function.  They,  with  the  answers,  are  intended  to 
aid  the  pleadings  and  are  sometimes  regarded  as  an  amplification  of 
the  pleadings  and  are  designed  to  bring  out  distinctly  before  the 
court  the  precise  points  or  propositions  relied  upon.  The  office  of 
such  interrogatories,  together  with  their  answers,  was  defined  by  one 
district  court  thus:     "Such  answers  to  interrogatories  are  designed 

'Admiralty  Rule   23.  » Admiralty  Rule  32. 

«  Benedict   Adm.    Pr.,    §    412.     See         ^^  Benedict  Adm.  Prac,  §  477. 
also,  Dana  v.  Cosmopolitan  &c.  Co., 
134  Fed.  158. 


611  LIMITATIOXS.  [§   3278. 

rather  as  compulsory  amplifications  of  the  pleadings  on  the  specific 
subjects  propounded  in  the  interrogatories,  so  as  to  dispense  with  the 
taking  of  proof,  or  evidence  proper  or  the  facts  that  may  be  ad- 
mitted. When  the  interrogatories  are  propounded  by  the  libel,  the 
replies  usually  make  part  of  the  answer  itself."'^  And  as  stated  by 
another  district  court:  "Such  interrogatories,  derived  from  tlie 
practice  of  the  civil  law,  are  designed  to  supercede  the  necessity  of 
proof,  and  to  bring  out  distinctly  before  tlie  court  the  point  on  which 
the  defense  or  claim  is  intended  to  be  rested .''^^ 

§  3278.  Limitations. — The  rule  requiring  that  tlie  interrogatories 
shall  seek  to  elicit  matters  material  to  the  issue  necessarily  implies 
certain  limitations  as  to  such  interrogatories.  But  these  limitations 
are  not  wholly  matters  of  implication.  The  rule  is  that  neither  party 
is  bound  to  answer  any  interrogatory  which  will  tend  to  criminate 
himself  or  which  will  expose  him  to  any  prosecution  or  punishment 
for  a  crime,  or  which  might  subject  him  to  any  penalty  or  to  any 
forfeiture  of  his  property  for  any  penal  offense.^^  Interrogatories 
may  be  asked  as  to  whether  or  not  particular  and  material  facts 
properly  within  the  issues  did  or  did  not  occur;  but  a  party  cannot 
be  compelled  by  answer  to  an  interrogatory  to  state  what  evidence  he 
may  have  as  to  whether  such  material  facts  did  or  did  not  occur." 
Nor  can  a  party  be  required  to  give  information  in  answer  to  an  in- 
terrogatory which  is  in  the  nature  of  hearsay  or  rumor  or  which  he 
has  derived  from  third  persons  not  in  any  way  connected  with  the 
action  or  subject  to  his  control.  But  the  rule  seems  to  be  that  a 
party  may  be  required  to  give  material  matter  the  knowledge  of 
which  is  acquired  by  him  from  his  agents  or  servants  while  in  the 
ordinary  course  of  their  employment  unless  he  is  able  to  show  that 
such  agents  or  servants  left  his  employment  before  he  acquired  such 
knowledge,  or  that  it  would  occasion  unreasonable  expense  or  an  un- 
reasonable amount  of  detail.  This  rule  was  thus  stated  by  an  Eng- 
lish Judge:  "It  seems  to  me  that  where  a  party  is  interrogated  as 
to  matters  done,  or  omitted  to  be  done,  by  his  agents  and  servants 
in  the  course  of  their  employment,  he  does  not  sufficiently  answer, 
by  saying  that  he  does  not  know  and  that  he  has  no  information  upon 
the  subject.     He  is  bound  to  go  further  and  obtain  information  from 

"Serapis,  The,  37  Fed.  436.  v.    Ronalds,    17    Jur.    393;    Scott    v. 

^  Stoffregan  v.  Mexican  Prince,  70  Miller.  Johnson  328. 
Fed.  246.  "  Bolokow  v.   Fisher.  L.  R.   10  Q. 

^8  Mary  or  Alexandra.  The,  L.  R.  2  B.  161,  170;  Admiralty  Rules  31,  32. 
A.  &  E.  319,  38  L.  J.  N.  S.  29;  Fisher 


$<§  3279,  3280.]  inteerogatoeies.  G12 

such  agents  or  servants  of  his,  or  he  must  show  some  sufficient  reason 
for  not  doing  it."^° 

§  3279.  Materiality  of  interrogatories. — The  fundamental  requi- 
site of  interrogatories  is  that  they  must  elicit  evidence  which  is  ma- 
terial to  the  issue.  The  libelant  has  the  right  to  require  the  defend- 
ant to  answer  any  special  interrogatories  which  may  be  put  touching 
the  matters  in  issue.^^  As  stated  by  a  district  court:  "The  practice 
is  essentially  the  same  as  that  in  equity,  in  which  the  interrogatories 
are  limited  to  the  subjects  contained  in  the  libel."^^  This  rule  was 
very  aptly  stated  by  an  English  judge  thus:  "The  cardinal  prin- 
ciple by  which  I  intend  to  be  governed  in  this  matter  is,  that  the  in- 
tei-rogatories  ought  to  be  such  as  tend  bona  fide  to  support  the  case 
of  the  plaintiff,  and  to  favor  a  complete  inquiry  into  the  truth  of  the 
issue  which  the  court  has  to  decide."^^ 

§  3280.  Interrogatories  as  evidence. — As  previously  suggested  one 
object  and  purpose  of  interrogatories  is  to  dispense  with  the  produc- 
tion of  witnesses.  Hence,  the  answers  to  interrogatories  may  dis- 
pense entirely  with  all  other  evidence.  The  answers  to  such  inter- 
rogatories as  are  propounded  at  the  close  of  the  pleadings  under  the 
admiralty  rules,  are  not  regarded  as  evidence  in  the  strict  sense  of 
the  word;  they  are  not  evidence  in  a  different  sense  than  that  in 
which  the  pleadings  are  evidence.  But  it  is  immaterial  whether  they 
are  answered  as  parts  of  the  pleadings  or  separately.  In  this  con- 
dition they  stand  as  evidence  precisely  like  the  pleadings,  and  what 
is  admitted  by  such  answers  needs  no  further  proof,  and  for  the  pur- 
pose of  evidence  or  argument  they  may  be  referred  to  by  either 
party .^'*    The  rule  as  to  the  use  of  interrogatories  in  evidence  has  been 

^■'Bolckow  V.  Fisher,  L.  R.  10  Q.  ^'^  Serapis,  The,  37  Fed.  436;   Aus- 

B.  161;  Minnehaha,  The,  L.  R.  3  A.  tralia.  The,  3  Ware    (U.  S.)    240,   2 

&  E.  148;  Isle  of  Cyprus.  The.  L.  R.  Fed.  Cas.   No.  667;    Hutson  v.   Jor- 

15  P.  D.  134.  dan,   1   Ware    (U.   S.)    385,   12   Fed. 

'"David   Pratt,   The,   1   Ware    (U.  Cas.  No.  6959;    David  Pratt,  The,  1 

S.)  495,  7  Fed.  Cas.  No.  3597;  Gam-  Ware    (U.  S.)    495,  7  Fed.  Cas.  No. 

mell  v.  Skinner,  2  Gall.   (U.  S.)   45,  3597;    Cushman    v.    Ryan,    1    Story 

9  Fed.  Cas.  No.  5210;    Radnorshire,  (U.  S.)  91,  6  Fed.  Cas.  No.  3515;   L. 

The,  L.  R.  5  P.  D.  172;   Williams  &  B.   Goldsmith,    The,    Newb.    123,    15 

B.  Adm.  Jur.  &  Prac.  411.  Fed.  Cas.  No.  8152;    Eads  v.  H.  D. 

>'  Edwin  Baxter.  The,  32  Fed.  296.  Bacon,  Newb.   274,  8  Fed.  Cas.  No. 

i*Mary  or  Alexandra,  The,  2  Ad.  4232. 
&  El.  319. 


613  EVIDENCE    FOR    OR    AGAINST    PAinY.  f§    32^1. 

stated  as  follows:  "Any  party  may,  at  the  trial  of  a  cause,  matter, 
or  issue,  use  in  evidence  any  one  or  more  of  the  answers  or  any  part 
of  an  answer  of  the  opposite  party  to  interrogatories  without  putting 
in  the  others  or  the  whole  of  such  answer:  provided  always,  that  in 
such  case  the  judge  may  look  at  the  whole  of  the  answers,  and  if  he 
shall  be  of  opinion  that  any  others  of  them  are  so  connected  with 
those  put  in  that  the  last-mentioned  answers  ought  not  to  be  used 
without  them,  he  may  direct  them  to  be  put  in."-" 

§  3281.     Interrogatories  as  evidence  for  or  against  party. — The 

answers  to  interrogatories  are  evidence  against  tlie  party  making 
such  answers  on  the  principle  of  admissions  against  interest.  And 
they  may  be,  in  some  cases,  sufficient  to  establish  the  issues  on  behalf 
of  the  party  submitting  the  interrogatories,  or  they  may  be  sufficient 
to  defeat  the  action  or  the  cause  of  defense  set  up  by  the  party  answer- 
ing the  interrogatories.  There  seems  to  be  some  conflict  in  the  ad- 
judicated cases  as  to  whether  or  not  the  answers  to  tlic  interrogatories 
may  be  used  as  evidence  in  favor  of  the  party  making  them.  Some 
cases  hold  that  they  cannot  be  so  used.  This  conflict  may  be  more  ap- 
parent than  real.  In  one  case  in  referring  to  the  answers  to  interroga- 
tories propounded  at  the  close  of  the  pleading  the  court  said  that  '"'such 
answers  are  not  affirmative  proof  in  favor  of  the  party  making  them."'^' 
In  another  case,  in  speaking  of  interrogatories  filed  at  the  close  of 
the  libel,  the  court  said :  "The  master,  by  answering  these  interroga- 
tories, would  make  his  answers  evidence.  For  though  the  general 
answer  of  the  respondent  is  not  properly  evidence  any  further  than 
the  charges  in  the  libel,  which  are  equally  verified  by  oath,  yet  the 
answers  to  special  interrogatories,  which  are  sometimes  subjoined  to 
the  libel,  and  sometimes  put  out  of  hearing,  are  evidence."--  Per- 
haps the  correct  rule  on  this  subject  was  stated  by  Judge  Story  as 
follows :  "The  answer  of  the  respondent  in  reply  to  interrogatories 
does  not  in  the  admiralty  constitute  positive  evidence  in  his  favor. 
Its  true  effect  is,  to  furnish  evidence  for  the  other  party,  or,  in  a  case 
hanging  in  equilil^rio  in  point  of  proof  to  turn  the  scale  in  favor  of 
the  respondent."-^    But  as  to  answers  to  special  interrogatories  the 

=»  Williams  v.  Bruce  Adm.  Jur.  &  S.)    495,    7    Fed.    Cas.    3597:    Order 

Pr.  413;  Lyell  v.  Kennedy,  L.  R.  27  XXXI,  Rule  24. 

Ch.  Div.  1.  "Cushman  v.  Ryan,   1   Story    (U. 

=iSerapis,  The,  37  Fed.  436.  S.)    91,   103,   6   Fed.   Cas.   No.   3515: 

-David   Pratt,   The,   1   Ware    (U.  Hutson  v.  .Jordan,  1  Ware   (U.  S.) 


§    3381.]  INTERROGATORIES.  614 

rule  was  stated  thus:  "In  the  admiralty  practice  in  this  country, 
it  is  believed,  that  when  a  party  is  required  to  answer  special  inter- 
rogatories, put  at  the  hearing,  the  answers  are  evidence  as  well  for 
the  party  who  is  interrogated,  as  for  the  other  party ."^^ 

385;   Gushing  v.  Laird,  6  Ben.    (U.     667;    L.   B.   Goldsmith,   The.   Newb. 
S.)  408.    See  also,  Australia,  The,  3     Adm.  125,  15  Fed.  Gas.  No.  8152. 
Ware  (U.  S.)   240,  2  Fed.  Gas.  No.        "Hutson  v.  Jordan,  1  Ware   (U. 

S.)  385,  401. 


i 


Sec. 

Sec. 

3282. 

Discovery  of  documents. 

3286. 

3283. 

Demand. 

3284. 

Application     for     discovery — 

3287. 

Practice. 

3288. 

3285. 

Discover  y — Discretion     of 

3289, 

judge. 

3290. 
3291. 

CHAPTER  CLXII. 

DISCOVERY    AND   INSPECTION    OF    DOCUMENTS. 


Production  of  documents — Af- 
fidavit. 
Discovery — Illustrations. 
Privileged  documents. 
Documents  privileged. 
Documents — When   privileged. 
Waiver  of  privilege — Effect. 

§  3282.  Discovery  of  documents. — The  practice  in  admiralty  in 
the  matter  of  inspection  and  discovery  of  documents  is  not  essentially 
different,  in  the  main,  from  that  in  other  courts.  It  is  the  rule  that 
either  party  may  apply  to  the  court,  or  to  a  judge  for  an  order  directing 
the  opposite  party  to  produce  for  inspection  or  use  documents  relating 
to  the  matters  in  controversy  which  are  in  his  possession  or  which 
have  been  in  his  possession  or  under  his  control.  It  seems  to  be  the 
rule  that  the  party  making  tlie  application  need  not  file  any  affidavit 
or  description  of  the  document  required.  The  court  or  judge  on 
hearing  the  application  may  either  refuse  or  adjourn  the  same  if  he 
is  satisfied  that  the  discovery  is  not  necessary;  or  he  may,  in  his 
discretion,  make  such  order  and  require  documents  generally  to  be 
produced,  or  he  may  limit  the  order  to  particular  documents  or  to 
a  particular  class  of  documents.^ 

§  3283.  Demand. — While  it  is  the  rule  that  an  order  for  inspec- 
tion of  documents  will  be  made,  it  is  also  the  rule  that  the  applicant 
should  show  a  previous  demand  or  application  to  the  adverse  party; 
in  the  absence  of  such  a  showing  the  applicant  may  be  condemned  in 
costs. ^*  The  general  rule  seems  to  be  that  a  party  is  not  entitled  to 
see  any  document  which  does  not  tend  to  make  out  his  case."  The 
plaintiff  must  show  that  the  documents  desired  are  essential  to  the 

'For  Discovery,  Production  and  =  .Jenkins  v.  Bushby,  35  L.J.  Ch. 
Inspection  of  Documents,  see  Vol.  II.  400;  Budden  v.  Wilkinson,  L.  R. 
Chap.  68.  (1893),  2  Q.  B.  432. 

'♦Memphis,  The,  3  Ad.  &  El.  23. 

615 


§§  3284-3286.]      discovery  and  inspection  of  documents.      616 

statement  of  his  elaim.^  In  an  action  by  the  owner  for  damages  to 
his  goods  where  it  was  made  to  appear  that  a  former  action  against 
the  same  vessel  had  been  settled  by  a  written  compromise  and  agree- 
ment, it  was  held  that  the  plaintiff  on  such  showing  was  entitled  to 
discovery  and  inspection  of  the  written  article  for  the  purpose  of 
using  any  admissions  as  to  negligence  made  by  the  owners  of  the 
vessel.* 

§  3284.  Application  for  discovery — Practice. — According  to  the 
practice  rule  an  application  for  discovery  may  be  made  without  filing 
any  affidavit.  But  if  made  without  filing  the  affidavit  it  must  comply 
strictly  with  the  rule  and  must  show  what  the  matters  in  question 
are.^  Under  this  practice  the  order  for  the  discovery  or  the  pro- 
duction of  the  document  until  the  statement  of  defense  is  delivered. 
Unless  the  matters  in  question  are  known  it  cannot  be  determined 
whether  the  documents  desired  relate  to  the  matters  in  question.^ 

§  3285.  Discovery — Discretion  of  judge. — There  are  instances  or 
circumstances  under  which  the  trial  court  may  exercise  his  discre- 
tion as  to  whether  or  not  he  will  grant  the  discovery  prayed  for.  And 
there  are  cases  where  the  decision  and  judgment  of  the  trial  court  will 
not  be  questioned  on  appeal.  Thus  where,  by  consent  of  the  parties 
to  the  action,  the  documents  of  which  inspection  was  sought  were 
submitted  to  the  trial  judge,  his  decision  was  held  to  be  final.  But 
the  general  rule  seems  to  be  that  the  trial  court  has  no  discretion 
to  refuse  to  grant  the  discovery  prayed  for  except  where  it  is  made 
to  appear  that  the  documents,  the  discovery  of  which  is  prayed  for 
are  privileged.'^  It  has  been  held  that  the  court  has  discretionary 
power  to  make  an  order  for  discovery  and  production  of  documents 
at  any  time  after  the  writ  is  issued,  even  before  the  issues  have  been 
defined  by  the  pleadings.^ 

§  3286.  Production  of  documents — Affidavit. — The  opposite  party 
must,  when  ordered,  produce  the  documents  specified  in  the  order. 

^Cashin  v.  Craddock,  L.  R.  2  Ch.         "  Bustros  v.  White,  L.  R.  1  Q.  B. 

Div.  140.  423;    West  of  England,  The,   1   Ad. 

*  Hutchinson  v.  Glover,  L.  R.  1  Q.  &   El.    308;    Daniell    v.    Bond,    3    L. 

B.  138,  3  Asp.   (N.  S.)  85.  T.  N.  S.  700. 

'^  Order  XXXI,  Rule  12.  *  Mellor  v.  Thompson,  49  L.  T.  N. 

« Hancock  v.  Guerin,  L.  R.  4  Ex.  S.  222. 
Div.  3. 


617  PRODUCTION AFFIDAVIT  [§    3286. 

On  production  of  the  documents  in  his  possession  he  is  required  to 
file  an  affidavit  stating:  (1)  The  documents  which  are  in  his  pos- 
session or  power  which  relate  to  the  matters  in  controversy;  (2)  the 
documents  relating  to  the  questions  in  controversy  which  were,  but 
are  no  longer  in  his  possession  or  under  his  control;  (3)  what  has 
become  of  the  documents  no  longer  in  his  possession  and  when  they 
were  last  in  his  possession  or  under  his  control.  If  such  party  has 
not  and  never  had  in  his  possession  any  documents  in  reference  to  the 
matter  in  controversy  he  should  fully  so  state  in  his  affidavit.  He 
should  show  by  his  affidavit  that  according  to  his  best  knowledge,  in- 
formation and  belief,  he  has  not  and  never  did  have  in  his  possession, 
custody  or  power,  or  in  the  possession,  custody  or  power  of  his  so- 
licitors or  agents  or  of  any  person  on  his  behalf  any  "deed,  account, 
book  of  account,  voucher,  receipt,  letter,  memorandum,  paper  or  writ- 
ing or  any  copy  of  or  extract  from  any  document,  or  any  other  docu- 
ment whatsoever,  related  to  the  matter  in  question."  If  any  docu- 
ment has  been  produced  he  should  then  say  "other  than  and  except"' 
the  document  set  forth  in  the  schedules  to  the  affidavit.  It  is  diffi- 
cult to  state  any  rule  as  to  the  sufficiency  of  the  affidavit  of  discovery. 
The  object  of  the  affidavit  is  to  enable  the  court  to  make  an  order  foi- 
the  production  of  documents  described  with  a  sufficient  description 
to  compel  the  production  if  ordered.  As  an  illustration  of  this  rule, 
which  is  applicable,  though  not  in  an  admiralty  case,  an  affidavit 
was  held  sufficient  which  stated:  "We  have  also  in  our  possession  or 
power  certain  documents,  numbered  1  to  26,  inclusive,  which  are 
tied  up  in  a  bundle  marked  A,  and  initialed  by  tlie  deponent  G.  S. 
Budden.  The  said  documents  last  mentioned  relate  solely  to  the 
title  or  to  the  case  of  us,  the  plaintiffs,  and  not  to  the  case  of  tlie 
defendants,  nor  do  they  tend  to  support  it;  wherefore  we  object  to 
produce  the  same  and  say  they  are  privileged  from  production.''"' 
But  the  affidavit  of  documents  is  not  conclusive  upon  the  party  apply- 
ing for  the  order  of  inspection,  and  after  such  affidavit  is  made  he 
may  have  an  order  for  the  same  where  he  makes  an  affidavit  specify- 
ing such  document  and  states  therein  that  he  believes  the  document 
to  contain  entries  which  he  would  be  entitled  to  inspect,  and  that 
it  is  in  the  possession  or  power  of  the  other  party,  notwithstanding 

*  Budden     v.     Wilkinson.     L.     R.  Coope  &  Co.  v.  Emmerson.  L.  R.  12 

(1893)    2  Q.   B.  432;    Greenwood  v.  App.  Cas.  300;   Taylor  v.  Batten,  L. 

Greenwood,   6   W.   R.   119;    Peile   v.  R.    4    Q.    B.    85:    West    of    England 

Stoddart,  1  Mac.  &  G.  192;  Bewicke  Bank  v.  Canton  Ins.  Co.,  L.  R.  2  Ex. 

V.  Graham,  L.  R.  7  Q.  B.  400:   Ind.  Div.  472. 


§    3278.]  DISCOVERY    AND    INSPECTION    OF    DOCUMENTS.  618 


that  the  affidavit  of  document  states  fully  and  explicitly  that  the 
party  making  it  has  not  in  his  possession  or  power  "any  deed,  etc 


>'10 


§  3287.     Discovery — Illustrations. — In  an  action  against  a  man- 
aging owner  of  ships  for  an  account,  it  has  been  held  that  he  must 
discover  all   documents  that  related   to  the   matter   in   controversy 
whether  in  his  individual  possession  or  in  that  of  a  firm  of  which 
he  is  a  member. ^^     So,  in  an  action  for  goods  damaged  by  leakage 
where  it  appeared  that  while  lying  at  a  foreign  port,  the  vessel  was  sur- 
veyed and  repaired,  it  was  held  that  the  plaintiff  was  entitled  to  the  in- 
spection of  the  surveys  and  the  shipwright's  bill  for  the  reason  that  the 
repairs  made  would  show  whether  the  damage  was  occasioned  by  un- 
seaworthiness as  alleged  in  the  libel.^=^     So,  discovery  or  inspection 
of  documents  may  be  ordered  even  where  such  documents  will  dis- 
close the  secrets  of  the  party's  business  or  of  his  trade.^^     In  an 
action  on  a  policy  of  Marine  insurance  the  plaintiff  is  entitled  to 
have  inspection  of  the  log  where  it  appeared  that  the  vessel  was 
abandoned."    So,  in  such  an  action  it  has  been  held  that  the  assured 
must  lay  before  the  underwriters  everything  which  throws  light  on 
any  part  of  the  transaction  in  which  both  parties  are  interested,  and 
this  was  held  to  include  letters  between  the  captain  and  the  plain- 
tiff.^^   But  in  such  an  action  it  has  been  held  that  the  defendant  is 
not  entitled  to  have  the  proceedings  stayed  until  the  plaintiff  has  ob- 
tained an  affidavit  of  document  from  the  person  who  is  neither  a 
party  to  the  action  nor  within  the  jurisdiction  of  the  court  when 
under  the  plaintiff's  control.^® 

§3288.  Privileged  documents. — Public  documents  are  privileged 
from  inspection  and  this  includes  reports  made  by  captains  of 
Her  Majesty's  ships  to  admiralty  in  cases  of  collisions.  To  bring 
such  a  report  within  the  rule  of  privilege  it  is  only  necessary  that  an 
affidavit  be  made  by  the  proper  officer  of  the  admiralty.  The  rule 
on  this  subject  is  more  fully  stated  as  follows:  "When  any  collision 
of  importance  occurs  between  one  of  Her  Majesty's  ships  and  any 

"Wiedeman  v.  Walpole,  L.  R.  24  "Don  Francisco,  The,  6  L.  T.  N. 

Q.  B.  537.  S.  133. 

"Swanston    v.    Lishman,    4    Asp.  » Kellock    v.    Home    &c.    Ins.    Co., 

(N.  S.)   450.  12  Jur.  N.  S.  653. 

"  Daniell  y.   Bond,  3   L.   T.  N.   S.  ''  Rayner  v.  Ritson,  6  B.  &  S.  888. 

700  i«  Fraser  v.  Burrows,  L.  R.  2  Q.  B. 

624. 


619  PRIVILEGED    DOCUMENTS.  [§    oZR^.K 

other  ship  or  vessel,  it  is  the  duty  of  the  officer  in  command  of  Her 
Majesty's  ship  forthwith  to  report  such  collision  to  his  senior  officer 
or  commander-in-chief,  and  of  such  senior  officer  or  commander-in- 
chief  to  forward  the  same,  with  or  without  remarks  as  lie  may  think 
fit,  to  the  Lords  Commissioners  of  the  Admiralty.  Such  reports  are 
designed  solely  for  the  information  of  the  reporting  officer's  naval 
superior  and  the  said  Lords  Commissioners  of  the  Admiralty,  and  are 
in  the  nature  of  confidential  communications.  It  will  be  prejudicial 
to  the  public  service  to  allow  sucli  reports  to  become  liable  to  inspec- 
tion by  litigants  in  any  proceedings  at  law  touching  the  matters 
therein  reported."^'  The  principle  was  also  stated  in  another  case  as 
follows :  "We  are  of  opinion  that  if  the  production  of  a  state  paper 
would  be  injurious  to  the  public  service,  the  general  public  interest 
must  be  considered  paramount  to  the  individual  interests  of  a  suitor 
in  a  court  of  justice.  .  .  .  It  appears  to  us,  therefore,  that  the 
question,  whether  the  production  of  the  document  would  he  injurious 
to  the  public  service,  must  be  determined,  not  by  the  judge  but  by  the 
head  of  the  department  having  the  custody  of  the  paper,  and  if  he 
is  in  attendance,  and  states  that  in  his  opinion,  the  production  of  the 
document  would  be  injurious  to  the  public  service,  we  think  the  judge 
ought  not  to  compel  the  production  of  it."^^  Wliere  an  order  to  make 
discovery  is  made  on  the  owners  of  foreign  ships  it  is  the  rule  that 
reasonable  time  be  given  for  them  to  obey  the  order.  ^'^  A  court  will 
not  make  an  order  for  inspection  or  discovery  on  the  solicitors  of  a 
party.  The  court  has  no  jurisdiction  over  solicitors  for  such  a  pur- 
pose.^** 

§  3289.  Documents  privileged. — The  adverse  party  cannot  be  re- 
quired to  produce  documents  which  are  privileged.  If  he  claims  any 
document  in  his  possession  to  be  privileged  he  must  so  state  in  his 
affidavit,  and  must  specify  which,  if  any,  of  the  documents  referred 
to  is  the  document  he  objects  to  producing,  stating  fully  upon  what 
grounds  the. objection  is  based,  and  as  far  as  possible  verify  the  facts 
upon  which  the  objection  is  founded.-^  It  has  been  held  that  an 
affidavit  is  insufficient  which  merely  states  that  the  documents  are 
privileged.  The  facts  must  be  stated  under  oath  on  whicli  the  claim 
of  privilege  is  made;  these  must  be  so  stated  that  the  court  may  de- 

"  Bellerophon,    H.    M.    S.,    2    Asp.  '"Emma.  The,  3  Asp.  (N.  S.)   218. 

(N.  S.)   449.  ^^Cashin  v.  Craddock,  L.  R.  2  Ch. 

"  Beatson  v.  Skene,  5  H.  &  N.  838,  Div.  140. 

29  L.  J.  Ex.  430.  =>  Order  XXXI,  Rule  13. 


§■    3290.]  DISCOVEBY    AND    INSPECTION    OF    DOCUMENTS.  620 

termine  from  the  facts  set  out  whether  or  not  the  document  is  privi- 
leged.^- The  privilege  from  inspection  of  correspondence  between 
the  client  and  his  solicitor  continues  after  the  termination  of  the 
controversy;  and  such  confidential  communication  is  not  subject  to 
inspection  in  a  subsequent  action  involving  the  same  facts. ^^  So, 
shorthand  notes  taken  of  the  evidence,  speeches  and  summing  up  at 
the  trial  of  one  action,  caused  to  be  taken  by  one  of  the  parties,  are 
privileged  from  inspection  in  a  subsequent  action  involving  the  same 
facts,  where  it  was  made  to  appear  that  such  notes  were  intended 
to  form  material  for  the  guidance  of  the  plaintifl:  and  his  counsel  in 
the  trial  of  the  subsequent  action.^*  Nor  will  discovery  be  ordered 
of  copies  of  certain  depositions  where  it  is  made  to  appear  that  such 
copies  were  obtained  for  the  purpose  of  the  pending  action,  and  "to 
form  part  of  the  brief .''-^ 

§  3290.  Documents — ^When  privileged. — It  is  fundamental  that 
privileged  documents  are  not  subject  to  orders  for  discovery  and  in- 
spection. This  rule  is  always  conceded  both  by  courts  and  council. 
The  controversies  arise  in  determining  whether  or  not  a  particular 
document  is  privileged.  The  general  rule  is  that  all  communications 
between  the  client  and  solicitor  are  privileged.  This  rule  extends  to 
indirect  communications  as  well  as  to  those  made  directly.  The  rule 
of  privilege  as  to  such  indirect  communications  has  been  stated  thus : 
"lAHiere  the  advice  or  communication  does  not  proceed  from  the 
solicitor  directly,  but  is  information  sent  at  his  instance  by  an  agent 
employed  by  him,  or  even  by  the  client  on  his  recommendation,  or  in 
some  way  or  other  procured  by  the  solicitor  acting  in  the  case  for  the 
plaintiff  or  defendant,  the  communication  is  privileged."^^  And  re- 
ports of  survey  of  a  ship  made  before  the  commencement  of  an  action 
where  it  appears  that  they  are  made  solely  for  the  purpose  of  pro- 
ceeding in  the  action,  are  held  to  be  privileged.-' 

-Gardner   v.    Irvin,   L.   R.    4   Ex.  =^  Palermo,  The,  L.  R.  9  P.  D.  6. 

Div.  49.  ""  Bustros  v.  White,  L.  R.  1  Q.  B. 

^Bullock  v.  Corry,  L.  R.  3  Q.  B.  423,  45  L.  J.  N.  S.  642;    Southwark 

356;    Holmes   v.    Baddeley,    1    Phil-  &c.  Co.  v.  Quick,  L.  R.  3  Q.  B.  315; 

lips  476;   Pearce  v.  Foster,  L.  R.  15  Holloway,  In  re,  L.  R.  12  P.  D.  167; 

Q.  B.  114.  Lyell  v.  Kennedy,  L.  R.  27  Ch.  Div. 

=«Nordon  v.  Defries,  L.  R.  8  Q.  B.  1,  9  App.  Cas.  81. 

508;    Southwark   &c.   Co.   v.   Quick,  -■  Theodor    Korner,    The,    4    Asp. 

L.    R.    3    Q.    B.    315;    Anderson    v.  (N.  S.)   17,  L.  R.  3  P.  D.  162,  47  L. 

Bank   &c.,    L.    R.    2    Ch.    Div.    644;  J.  N.  S.  85. 
McCorquodale  v.  Bell,  L.  R.  1  C.  P. 
D.  471. 


Q21  WAIVER    OF    PRIVILEGE.  [§    331)1. 

§  3291.  Waiver  of  privilege — Effect. — That  a  party  may  waive 
his  right  of  freedom  from  inspection  and  discovery  of  document  is 
too  apparent  for  a  citation  of  authorities.  But  the  question  has 
arisen  whether  or  not  when  a  party  waives  the  privilege  as  to  certain 
documents  in  his  possession  he  can  then  claim  it  as  to  others.  There 
can  be  no  good  reason  why  he  may  not.  The  privilege  is  his  of  right, 
and  if  he  chooses  to  forego  this  privilege  or  waive  this  right  as  to 
certain  documents  he  ought  not  to  be  denied  the  privilege  as  to  others. 
This  principle  was  stated  by  one  of  the  Lord  Justices  of  England 
thus:  "There  was  this  contention  raised,  which  we  have  not  for- 
gotten; that  the  defendant  had  waived  his  privilege,  and  therefore 
could  not  claim  it  at  all.  That,  in  my  opinion,  was  entirely  fallacious. 
He  had  done  this,  he  had  said,  'Whether  I  am  entitled  to  protect 
them  or  not,  I  will  produce  certain  of  the  documents  for  which  I  had 
previously  claimed  privilege — I  will  waive  that,  and  will  produce 
then,'  but  that  did  not  prevent  him  relying  on  sucli  protection  with 
regard  to  others  which  he  did  not  like  to  produce.  It  is  not  like  the 
case  of  a  man  who  gives  part  of  a  conversation  and  tlien  claims  pro- 
tection for  the  remainder,  and  we  think  there  is  no  ground  for  the 
contention  that  there  has  been  here  waiver  of  privilege."^^  If  a 
party  fails  to  answer,  or  answers  insufficiently,  the  interrogating  party 
may  apply  to  the  court  or  judge  for  an  order  requiring  either  a  more 
specific  or  an  additional  answer.  But  the  court  is  not  justified  in 
disregarding  the  oath  of  the  defendant  on  mere  suspicion.-** 

'^Lyell  v.  Kennedy,  L.  R.  27  Ch.         -»Lyell  v.  Kennedy,  L.  R.  27  Ch. 
Div.  1.  Div.  1. 


CHAPTER  CLXIII. 


WAGES    OF    SEAMEN. 


Sec.  Sec. 

3292.  Employment    of    officers    and  3301. 

seamen. 

3293.  Contracts     of      seamen — Con-  3302. 

struction     and     burden     of 

proof.  3303. 

3294.  Contract   for   wages — Dissolu- 

tion. 3304. 

3295.  Wages — Burden  of  proof. 

3296.  Forfeiture  of  wages.  3305. 

3297.  Abandonment       of       vessel—  3306. 

Abandoned  by  officers.  3307. 

3298.  Charge     of     voyage — Justifies  3308. 

abandonment.  3309. 

3299.  Unseaworthiness — Effect,    bur-  3310. 

den  and  presumption. 

3300.  Discharge  of  seamen — Miscon-  3311. 

duct. 


Discharge  of  seamen — Drunk- 
enness. 

Misconduct  of  master  or 
mate. 

Recovery  of  wages — Vessel 
unladen. 

Time  of  unlading  vessel — 
Presumption. 

Wages — Increase. 

Loss  of  ship — Effect  on  wages. 

Effect  of  desertion. 

Desertion — End  of  voyage. 

Desertion  and  return. 

Short  allowance  of  provisions 
— Effect  on  wages. 

Short  allowance  of  provisions 
— Burden  of  proof. 


§  3292.  Employment  of  officers  and  seamen. — The  general  and  al- 
most universal  practice  as  well  as  the  statutory  requirement  for  the 
employment  of  either  officers  or  seamen  is  a  contract  in  writing, 
known  as  the  ship's  articles.  And  in  an  action  by  seamen  for  wages 
it  is  the  duty  of  the  master  or  owners  of  the  vessel  to  produce  these 
articles.  But  this  method  of  employment  is  not  exclusive  and  a 
verbal  contract  may  be  proved  or  it  may  be  established  from  circum- 
stances. Usually,  however,  such  contract  must  be  established  by  oral 
proof  of  express  hiring  or  by  the  signing  of  the  ship's  articles.  The  em- 
ployment of  the  master  is  too  marked  and  notorious  ordinarily  to 
leave  room  for  question,  and  when  such  employment  is  to  be  estab- 
lished by  circumstantial  evidence,  in  such  case  the  evidence  required 
shoidd  be  of  such  a  character  as  leaves  no  fair  reason  to  doubt  the 
fact,  and  it  must  go  further  and  present  a  case  equally  consistent 
with  the  theory  of  a  temporary  engagement  in  part  as  a  preparation 

623 


623  CONTRACTS BURDEN    OF    PROOF,  [§    3293. 

for  a  voyage,  as  with   an  appointment  to  sail  in  command  of  the 

vessel.^ 

§3293.     Contracts  of  seamen — Construction  and  burden  of  proof. 

As  shown  in  the  preceding  section  it  is  almost  tlie  universal  prac- 
tice that  seamen  before  shipping  are  required  to  sign  a  contract  as 
to  wages;  and  such  contract  is  designated  by  the  general  term 
shipping  articles.  These  articles  are  ordinarily  co-incident  with  the 
general  principle  of  the  maritime  law  in  reference  to  the  wages  of 
seamen.  Any  change  or  interpolation  in  the  shipping  articles  in- 
jurious to  the  rights  of  seamen  and  inuring  to  the  benefit  of  the  mas- 
ter or  owner  will  be  watched  with  scrupulous  jealousy  by  the  courts 
of  admiralty;  and  they  will  be  construed  most  favorably  to  the  sea- 
men, or  where  justice  requires  will  be  declared  void.  The  reasons 
for  this  rule  are  thus  stated  by  Judge  Story :  "Seamen  are  a  class 
of  persons  remarkable  for  their  rashness,  thouglitlcssness  and  im- 
providence. They  are  generally  necessitous,  ignorant  of  the  nature 
and  extent  of  their  own  rights  and  privileges,  and  for  the  most  part 
incapable  of  duly  appreciating  their  value.  They  combine,  in  a  sin- 
gular manner,  the  apparent  anomalies  of  gallantry,  extravagance,  pro- 
fusion in  expenditure,  indifference  to  the  future,  credulity,  which  is 
easily  won,  and  confidence,  which  is  readily  surprised.  Hence,  it  is 
that  bargains  between  them  and  shipowners,  the  latter  being  persons 
of  great  intelligence  and  slirewdness  in  business,  are  deemed  open  to 
much  observation  and  scrutiny ;  for  they  involve  great  inequality  of 
knowledge,  of  forecast,  of  power,  and  of  condition.     Courts  of  Ad- 

'  Jones  v.   Davis,   Abb.   Adm.    (U.  Cas.    No.    6992;     United    States    v. 

S.)     446,    13    Fed.    Cas.    No.    7460;  King,  23  Fed.   138;    Christina,  The, 

Moran  v.  Baudin,  2  Pet.  Adm.    (U.  Deady   (U.  S.)   49;   Jansen  v.  Theo- 

S.)     415,    17    Fed.    Cas.    No.    9785;  dor  Heinrich,   The,  Crabbe   (U.   S.) 

United  States  v.  Grace  Lothrop,  95  226,  13   Fed.   Cas.  No.   7215;    Magee 

U.  S.  527;  Atlantic,  The,  Abb.  Adm.  v.  Moss,  The,  Gilp.    (U.   S.)    219,  16 

(U.    S.)    451,   2   Fed.   Cas.   No.   620;  Fed.    Cas.    No.    8944;    Gem,    The,    1 

City  of  Mexico,  The,  7  Ben.  (U.  S.)  Low.    (U.  S.)   180,  10  Fed.  Cas.  No. 

31,    5    Fed.    Cas.    No.    2756;     Sarah  5304;  Hermine.  The,  3  Sawy.  (U.  S.) 

Jane,    The,    Blatchf.    &    H.    (U.    S.)  80,  12  Fed.  Cas.  No.  6409;  Brown  v. 

401,  21  Fed.  Cas.  No.  12348;  Page  v.  Jones,   2  Gall.    (U.   S.)    477,   4  Fed. 

Sheffield,    2    Curt.    (U.    S.)    377,    18  Cas.  No.  2017;  Burdett  v.  Williams, 

Fed.  Cas.  No.  10667;  Bryant,  In  re,  27  Fed.  113;   Minerva.  The,  1  Hagg. 

Deady   (U.  S.)   118,  4  Fed.  Cas.  No.  Adm.    347;     George    Home,    The,    1 

2067;     Osceola,    The,    01c.     (U.    S.)  Hagg.  Adm.  370;  Redmond  v.  Smith, 

450,  18  Fed.  Cas.  No.  10602;   lanthe,  7  M.  &  G.  457,  49  E.  C.  L.  456. 
The,  3   Ware    (U.  S.)    126,   12  Fed. 


§    329-1.]  WAGES    OF    SEAMEN. 


624 


miralty  on  this  account  are  accustomed  to  consider  seamen  as  pe- 
culiarly entitled  to  their  protection  so  that  they  have  been,  by  a 
somewhat  bold  figure,  often  said  to  be  favorites  of  courts  of  ad- 
miralty. In  a  just  sense  they  are  so,  so  far  as  the  maintenance  of 
their  rights,  and  the  protection  of  their  interests  against  the  effect 
of  the  superior  skill  and  shrewdness  of  masters  and  owners  of  ships 
are  concerned."^  Hence,  where  the  shipping  articles  contain  terms 
which  are  contrary  to  the  general  rights  and  privileges  of  seamen,  the 
burden  of  proof  is  upon  the  master  and  shipowner  to  show  that  both 
the  nature  and  operation  of  the  stipulations  were  fully  explained  to 
the  seamen,  and  that  additional  compensation  was  provided  for  en- 
tirely adequate  to  the  new  restrictions  imposed.^*  The  general  rule 
is  that  where  there  is  any  ambiguity,  uncertainty  or  obscurity  in  the 
shipping  articles  the  courts  will  adopt  a  construction  most  favorable 
to  the  seamen.* 

§  3294.  Contract  for  wages — Dissolution. — The  seamen's  contract 
for  wages  is  binding  on  both  parties  throughout  the  voyage  or  for  the 
stipulated  time.  If  it  has  been  violated  by  the  seaman  in  an  action 
for  wages  he  must  show  a  sufficient  excuse  or  justification  for  the 
breach.  The  contract  may  be  dissolved  (1)  by  the  final  abandon- 
ment of  the  vessel;  (2)  by  a  discharge  from  the  master.     It  is  the 

'-Brown  v.  Lull.  2  Sumn.   (U.  S.)  226.  13  Fed.  Cas.  No.  7215;  Pioneer, 

443,  449,  4  Fed.  Cas.  No.  2018;  Etna,  The,  Deady  (U.  S.)  72,  19  Fed.  Cas. 

The,  1  Ware  (U.  S.)  474,  8  Fed.  Cas.  No.   11177;    Hoghton,   The,  3   Hagg. 

No.  4542;   Prince  Frederick,  The,  2  Adm.  100;   Nonpareil,  The,  33  L.  J. 

Hagg.    Adm.   394;    Minerva,    The,    1  Adm.  201. 

Hagg.   Adm.    347;    Brice    v.    Nancy,  =  Brown  v.  Lull,  2  Sumn.   (U.  S.) 

The,  Bee    (U.  S.)    429,  4   Fed.  Cas.  443,  4  Fed.  Cas.  No.  2018;   Almatia, 

No.' 1855;     Cadmus,    The,    v.    Mat-  The,  Deady  (U.  S.)  473,  1  Fed.  Cas. 

thews,  2  Paine    (U.  S.)    229,  4  Fed.  No.  254;  Australia,  The,  3  Ware  (U. 

Cas.   No.    2282;    Kambira,    The,   100  S.)   240,  2  Fed.  Cas.  No.  667;  Sarah 

Fed.  118;   Alice  Blanchard,  The,  92  Jane,    The,    Blatchf.    &   H.    (U.    S.) 

Fed.  519;  Two  Fannys,  The,  25  Fed.  401,    21    Fed.    Cas.    No.    12348;    Cy- 

285;  Wope  v.  Hemenway,  1  Sprague  press.   The,   Blatchf.   &  H.    (U.    S.) 

(U.  S.)  300,  30  Fed.  Cas.  No.  18042;  83,  6  Fed.  Cas.  No.  3530;   Trecartin 

Snow  v.  Wope,  2  Curt.   (U.  S.)   301,  v.  Rochambeau,  The,  2  Cliff.  (U.  S.) 

22  Fed.  Cas.    No.  13149;  Disco,  The,  465,  24  Fed.  Cas.  No.  14163;  Samuel 

2  Sawy.  (U.  S.)  474,  7  Fed.  Cas.  No.  Ober,   The,   15   Fed.   621;    San   Mar- 

3922;   Goodrich  v.  Domingo,  The,  1  cos,  The,  27  Fed.  567. 

Sawy.  (U.  S.)  182,  10  Fed.  Cas.  No.  ^  Jansen     v.     Theodor     Heinrich, 

5543;  Ada,  The,  2  Ware  (U.S.)  408,  The,    Crabbe    (U.    S.)    226,   13   Fed. 

1  Fed.  Cas.  No.  38;  Jansen  v.  Theo-  Cas.    No.    7215;    Hoghton,    3    Hagg. 

dor  Heinrich,  The,  Crabbe   (U.  S.)  Adm.  100. 


625  WAGES — BURDEN  OF  PROOF.     [§§  3295,  3296. 

duty  of  seamen  to  do  their  utmost  to  save  the  ship  and  cargo  and  an 
abandonment  of  the  vessel  will  not  be  justified  until  it  is  made  to  ap- 
pear that  such  duty  was  faithfully  performed.  So,  if  the  ship  is 
wrecked  or  otherwise  lost  there  may  be  an  abandonment.  And  in  the 
absence  of  fraud  a  discharge  from  the  master  is  a  sufficient  justifi- 
cation. The  burden  of  proving  an  abandonment  which  is  relied  upon 
to  dissolve  the  contract  is  upon  the  seaman.  Where  the  abandon- 
ment is  shown  to  be  in  good  faith  for  good  cause,  and  the  seamen  are 
discharged  by  the  act  of  the  master,  it  is  held  that  they  may  recover 
as  salvors  for  services  subsequently  rendered  in  saving  the  cargo.  ^ 

§  3295.  Wages — Burden  of  proof. — Where  by  the  terms  of  the 
shipping  articles,  the  seamen  shall  not  sue  for  wages  until  the  vessel 
is  unladen,  in  an  action  for  wages  by  a  seaman  it  was  held  that  the 
burden  was  on  the  libelant  to  prove  that  the  vessel  was  atcually  un- 
laden at  the  time  of  filing  the  libel,  or  that  it  had  been  moored  fifteen 
days  or  more.*'  In  such  an  action  it  has  been  held  that  the  ship's 
articles  were  prima  facie  proof  of  the  fact  that  the  libelant  was  on 
board.'  And  where  seamen  are  discharged  after  the  contract  is  duly 
executed,  the  burden  is  upon  the  ship  to  justify  the  discharge.^ 

§  3296.  Forfeiture  of  wages. — Notwithstanding  the  binding  ef- 
fect of  the  contract  for  wages,  it  is  the  recognized  rule  that  a  seaman 
may  forfeit  his  wages.  This  forfeiture  may  be  incurred  in  many 
ways,  but  the  general  rule  is  that  wages  are  forfeited  for  gross  of- 
fenses. "But  it  is  not  a  single  neglect  of  duty,  or  a  single  act  of 
disobedience,  which  ordinarily  carries  with  it  so  severe  a  penalty. 
There  must  be  a  case  of  high  and  aggravated  neglect  of  disobedience, 
importing  the  most  serious  mischief,  peril  or  wrong;  a  case  calling 
for  exemplary  punishment,  and  admitting  of  no  reasonable  mitiga- 
tion, a  case  involving  a  very  gross  breach  of  the  stipulated  contract 
for  hire,  and  going,  in  its  character  and  consequences  to  the  very 
essence  of  its  provisions."^     But  ordinarily  proof  of  a  single  neg- 

=  Warrior,  The,  Lush.  Adm.   476;  '  Malone  v.  Bell,  1  Pet.  Adm.   (U. 

Varuna,    The,    1    Stuart    Vice-Adm.  S.)  139,  16  Fed.  Cas.  No.  8994. 

(L.  C.)  357;  Davis  v.  Leslie,  1  Abb.  'Villa  Y  Herman,  101  Fed.  132. 

Adm.    (U.  S.)    123,  7  Fed.  Cas.  No.  ^Mentor,    The,    4    Mason    (U.    S.) 

3639.  84,  17  Fed.  Cas.  No.  9427;    Richard 

«Granon    v.    Hartshorne,    Blatchf.  Matt,  The,  1   Diss.    (U.   S.)    440.   20 

&  H.   (U.  S.)   454,  10  Fed.  Cas.  No.  Fed.     Cas.     No.     11766;     Elizabeth 

5689.                        '  Frith,  The,  Blatchf.   &   H.    (U.   S.) 

Vol.  4  Elliott  Ev. — 40 


3297,  3298.] 


WAGES    OF   SEAMEN. 


626 


lect  of  duty,  or  a  single  act  of  disobedience  will  not  subject  the  of- 
fender to  a  forfeiture  of  wages.^''  In  an  action  by  the  seamen  for 
wages,  proper  service  and  good  conduct  are  presumed  until  over- 
come by  the  owner  of  the  vessel.^'  Mere  neglect  of  duty  of  the  mate 
is  not  sufficient  to  justify  the  forfeiture  of  wages,  unless  such  neglect 
is  followed  by  injurious  consequences  to  the  owner:  the  burden  of 
proving  such  injurious  results  is  upon  the  person  setting  it  up/^ 

§  3297.  Abandonment  of  vessel — Abandoned  by  officers. — Where 
the  owners  have  abandoned  the  vessel  to  the  discretion  of  the  captain, 
and  she  is  assigned  in  trust,  the  seamen  are  justified  in  leaving  the 
vessel  and  suing  for  their  wages;  and  admiralty  courts  will  entertain 
jurisdiction  in  such  cases,  although  the  seamen  are  foreigners  and 
even  where  they  had  agreed  in  the  shipping  articles  not  to  sue  in  for- 
eign courts.^  ^ 

§  3298.  Change  of  voyage — Justifies  abandonment. — The  ship- 
ping articles  usually  provide  for  the  particular  voyage  and  describe 


195,  8  Fed.  Cas.  No.  4361;  Drysdale 
V.  Ranger,  The,  Bee  (U.  S.)  148,  7 
Fed.  Cas.  No.  4097;  Olive  Chamber- 
lain, The,  1  Sprague  (U.  S.)  9,  18 
Fed.  Cas.  No.  10491;  Nimrod,  The, 
1  Ware  (U.  S.)  9,  18  Fed.  Cas.  No. 
10267;  Sprague  v.  Kain,  Bee  (U.  S.) 
184,  22  Fed.  Cas.  No.  13250;  Childe 
Harold,  The,  01c.  (U.  S.)  275,  5 
Fed.  Cas.  No.  2676;  Moslem,  The, 
01c.  (U.  S.)  289,  17  Fed.  Cas.  No. 
9875;  Alps,  The,  19  Fed.  139;  Smith 
V.  J.  C.  King,  The,  3  Fed.  302; 
Pacific,  The,  23  Fed.  154;  Occi- 
dental, The,  101  Fed.  997;  Shawnee, 
The,  45  Fed.  769;  Weatherpen  v. 
Laidler,  8  Moo.  37,  17  E.  C.  L.  534; 
Countess  of  Harcourt,  1  Hagg.  Adm. 
248;  Train  v.  Bennett,  3  Car.  &  P. 
3,  14  E.  C.  L.  420;  Susan,  The,  2 
Hagg.  Adm.  229  n. 

"Mentor,  The,  4  Mason  (U.  S.) 
84,  17  Fed.  Cas.  No.  9427;  Pioneer, 
The,  Deady  (U.  S.)  72,  19  Fed.  Cas. 
No.  11177;  Almatia,  The,  Deady  (U. 
S.)    473,  1  Fed.  Cas.  No.  254;    Ben- 


ton V.  Whitney,  Crabbe  (U.  S.)  417, 
8  Fed.  Cas.  No.  1335;  John  Martin, 
The,  Brown  Adm.  (U.  S.)  149,  13 
Fed.  Cas.  No.  7358;  Magnet,  The, 
Brown.  Adm.  (U.  S.)  547,  16  Fed. 
Cas.  No.  8955;  Ealing  Grove,  The, 
2  Hagg.  Adm.  15;  New  Phoenix, 
The,  1  Hagg.  Adm.  198;  Malta,  The, 
2  Hagg.  Adm.  158;   Lady  Campbell, 

2  Hagg.  Adm.  14;  Gondolier,  The,  3 
Hagg.  Adm.  190;  Vibilia,  The,  2 
Hagg.  Adm.  228;  Blake,  The,  1  W. 
Rob.  73;  Lima,  The,  3  Hagg.  Adm. 
346. 

"  Malta,  The,  2  Hagg.  Adm.  158. 

"  Duchess  of  Kent,  The,  1  W.  Rob. 
283;  Malta,  The,  2  Hagg.  Adm.  158. 
See  Lima,  The,  3  Hagg.  Adm.  346. 

^^Wilhelm  Frederick,  The,  1 
Hagg.  Adm.  138;  Sigard  v.  Roberts, 

3  Esp.  71;  Limland  v.  Stephens,  3 
Esp.  269;  Bucker  v.  Klorkgeter,  1 
Abb.  Adm.  (U.  S.)  402,  4  Fed.  Cas. 
No.  2083.  A  collection  of  cases  on 
the  proposition  that  courts  of  ad- 
miralty   will    take    jurisdiction    in 


627  UNSEAWORTHINESS BURDEN    AND    PRESUMPTIONS.    [§    3299. 

it  with  reasonable  certainty  from  the  port  of  sailing  to  the  various 
intermediate  ports  and  the  port  of  destination."  The  general  rule 
is  that  deviation  from  the  prescribed  voyage  will  justify  seamen 
in  the  abandonment  of  the  vessel,  and  their  wages  become  due  im- 
mediately. But  in  this  respect  the  ship's  articles  are  not  to  be  too 
strictly  construed.  It  is  not  the  rule  that  tlie  least  deviation  from 
the  designated  voyage  will  invalidate  the  articles  and  discliarge  the 
seamen.  The  correct  rule  is  that  gross  and  unnecessary  deviations 
will  discharge  the  seamen  and  justify  their  abandonment  of  the  ves- 
sel. Thus,  where  it  was  shown  that  after  the  vessel  reached  the  port 
of  destination  and  instead  of  returning  the  vessel  was  freighted  to 
go  elsewhere,  it  was  held  a  sufficient  justification  for  her  abandon- 
ment by  the  mariners.^^  But  the  mere  putting  into  a  port  in  order 
to  make  necessary  repairs  is  not  such  a  deviation  as  will  discharge 
the  seamen.^®  In  order  to  justify  the  abandonment  the  change  of 
voyage  must  have  in  fact  taken  place,  or  it  must  have  been  actually 
determined  upon  by  the  master,  of  which  determination  the  sea- 
men had  notice."  The  burden  of  proving  a  deviation  sufficient  to 
justify  abandonment  is  upon  the  libelant.^** 

§  3299.  Unseaworthiness — Effect,  burden  and  presumption. — It  is 
a  well-recognized  rule  in  maritime  law  that  unseaworthiness  of  a 
vessel  justifies  seamen  in  leaving  the  sliip  and  entitles  them  to  re- 
cover their  wages.^^    This  rule  is  founded  on  tlie  principle  that  it  is 

matters     of     controversy     between  S.)     264,    12    Fed.    Cas.    No.    6514; 

foreigners  in  certain  emergencies  is  Becherdass  Ambaidass,  The,  1  Low. 

found  in  4  Fed.  Cas.  p.  5.59.  (U.  S.)  569,  6  Am.  L.  Rev.  74,  3  Fed. 

'*Magee  v.   Moss,   The,   Gilp.    (U.  Cas.  No.  1203. 

S.)     219,    16    Fed.    Cas.    No.    8944;  "  Botker  v.  Towner,  3  E.  D.  Smith 

Minerva,    The,    1    Hagg.    Adm.    347,  (N.  Y.)  132. 

361;   Westmorland,  The,  1  W.  Rob.  "Douglass  v.  Eyre,  Gilp.    (U.  S.) 

216,    228;     Varuna,    The,    1    Stuart  147,  7  Fed.  Cas.  No.  4032. 

Vice-Adm.  (L.  C.)  357.  ^'^  Botker  v.  Towner,  3  E.  D.  Smith 

"Moran   v.   Baudin,    2   Pet.   Adm.  (N.  Y.)  132. 

(U.  S.)  415,  17  Fed.  Cas.  No.  9785;  ^^  Bucker    v.    Klorkgeter,    1    Abb. 

Potter  v.  Allin,  2  Root  (Conn.)  63;  Adm.    (U.  S.)    402,  4  Fed.  Cas.  No. 

Magee  v.   Moss,  The,  Gilp.    (U.   S.)  2083;  Bray  v.  Atlanta,  The,  Bee  (U. 

219,  16  Fed.  Cas.  No.  8944;   Thorne  S.)  48,  4  Fed.  Cas.  No.  1819;  United 

V.  White,  1  Pet.  Adm.    (U.  S.)   168,  States  v.  Nye,  2  Curt.    (U.  S.)    225, 

23  Fed.  Cas.  No.  13989;  Crammer  V.  27    Fed.    Cas.    No.    15906;     United 

Fair   American,   The,   1    Pet.   Adm.  States  v.  Ashton,  2  Sumn.   (U.   S.) 

(U.  S.)    242,  6  Fed.  Cas.  No.  3347;  13,  24  Fed.  Cas.  No.  14470;   United 

Hindman  v.  Shaw,  2  Pet.  Adm.   (U.  States  v.  Staly,  1  Woodb.  &  M.   (U. 


§  3300.] 


WAGES   OF   SEAMEN. 


628 


the  duty  of  the  owner  or  the  master  to  know  that  the  vessel  is  sea- 
worthy, and  on  the  additional  principle  that  seaworthiness  is  pre- 
sumed.^'* It  is  also  the  rule  that  when  the  seamen  quit  the  ship  on 
account  of  its  being  unseaworthy  and  sue  for  wages  the  burden  is 
upon  the  libelants  to  establish  the  fact  of  unseaworthiness  or  to  over- 
come the  legal  presumption  of  seaworthiness.  But  where  the  libel- 
ants do  this  and  assume  this  burden  they  are  "entitled  to  every 
advantage  that  can  arise  from  the  clear  establishment  of  that  fact 
afterward,  with  the  same  effect  as  if  it  had  been  brought  to  light  at 
the  time  of  her  sailing.^'^^  Wliere  seamen  refuse  to  go  to  sea  in  a 
ship  that  is  unseaworthy,  or  wliere  they  leave  a  vessel  that  is  found 
to  be  leaking  constantly  and  for  no  other  cause  than  that  she  is 
dangerous  or  unseaworthy,  such  refusal  to  sail  or  such  abandonment 
of  the  ship  will  not  amount  to  a  technical  desertion.^^ 

§  3300.  Dischargee  of  seaman — MiscondTict. — That  a  seaman  may 
be  discharged  for  misconduct,  or  that  he  may  forfeit  his  claim  for 
wages  on  the  ground  of  misconduct  is  essential  to  the  safety  of  those 
engaged  in  navigation  and  to  maintain  the  authority  of  persons  in 
command  of  vessels.     The  causes  which  justify  the  master  in  dis- 


S.)  338,  27  Fed.  Cas.  No.  16374; 
Dixon  v.  Cyrus,  The,  2  Pet.  Adm. 
(U.  S.)  407,  7  Fed.  Cas.  No.  3930; 
Heroe,  The,  21  Fed.  525;  Turner  v. 
Owen,  3  Fost.  &  F.  176;  Hartley  v. 
Ponsonby,  7  El.  &  Bl.  872,  90  E.  C. 
L.  871;  Hibernia,  The,  1  Sprague 
(U.  S.)  78,  12  Fed.  Cas.  No.  6455; 
United  States  v.  Givlngs,  1  Sprague 
(U.  S.)  75,  25  Fed.  Cas.  No.  15212; 
Nimrod,  The,  1  Ware  (U.  S.)  9,  18 
Fed.  Cas.  No.  10267;  Shawnee,  The, 
45  Fed.  769;  Moslem,  The,  01c.  (U. 
S.)  289,  17  Fed.  Cas.  No.  9875; 
Bucker  v.  Klorkgeter,  Abb.  Adm. 
(U.  S.)  402,  4  Fed.  Cas.  No.  2083; 
Keating  v.  Pacific  &c.  Co.,  21  Wash. 
415,  58  Pac.  224;  C.  F.  Sargent,  The, 
95  Fed.  179. 

="  United    States   v.    Nye,    2    Curt. 
(U.  S.)  225,  27  Fed.  Cas.  No.  15906 
Work    V.    Leathers,    97    U.    S.    379 
Turner  v.  Owen,  3  Fost.  &  F.  176 
Hedley    v.    Pinkney   &c.    Co.,    L.    R 


(1892),  1  Q.  B.  58;  Dixon  v.  Cyrus, 
The,  2  Pet.  Adm.  (U.  S.)  407,  7  Fed. 
Cas.  No.  3930;  Rice  v.  Polly  and 
Kitty,  The,  2  Pet.  Adm.  (U.  S.)  420, 
20  Fed.  Cas.  No.  11754;  William 
Harris,  The.  1  Ware  (U.  S.)  367,  29 
Fed.  Cas.  No.  17695;  Nimrod,  The,  1 
Ware  (U.  S.)  9,  18  Fed.  Cas.  No. 
10267;  Jay  v.  Allen,  1  Sprague  (U. 
S.)  130,  13  Fed.  Cas.  No.  7235; 
Lizzie  Frank,  The,  31  Fed.  477; 
Noddleburn,  The,  28  Fed.  855;  La 
Fernier  v.  Soo  River  &c.  Co.,  129 
Mich.  540,  89  N.  W.  353;  Couch  v. 
Steel,  3  EL  &  Bl.  402,  77  E.  C.  L. 
402. 

'-'  Bucker  v.  Klorkgeter,  1  Abb. 
Adm.  (U.  S.)  402,  4  Fed.  Cas.  No. 
2083;  United  States  v.  Nye,  2  Curt. 
(U.  S.)  225,  27  Fed.  Cas.  No.  15906; 
Heroe,  The,  21  Fed.  525. 

"  Bucker  v.  Klorkgeter,  1  Abb. 
Adm.  (U.  S.)  402,  4  Fed.  Cas.  No. 
2083. 


629  DISCHAIIGE — MISCONDUCT.  [§    3300. 

charging  his  seamen  before  the  termination  of  the  voyage,  or  wliich 
amount  to  a  forfeiture  of  wages  "are  such  as  amount  to  a  disqualifi- 
cation and  show  him  to  be  unfit  for  the  services  he  has  engaged  for 
or  unfit  to  be  trusted  in  the  vesseh  They  arc :  mutinous  and  rebel- 
lious conduct,  persevered  in;  gross  dishonesty  or  embezzlement;  or 
where  the  seaman  is  habitually  a  stirrer  up  of  quarrels,  to  the  de- 
struction of  the  order  of  the  vessel  and  the  discipline  of  the  crew." 
Ordinarily  the  master  will  not  be  justified  in  discharging  a  seaman 
for  a  single  offense,  unless  it  be  of  a  very  high  and  aggravated  char- 
acter, implying  a  deep  degree  of  moral  turpitude,  or  a  dangerous 
and  ungovernable  temper  or  disposition.  The  law  is  more  indulgent 
to  the  common  seaman,  in  this  respect,  than  in  the  case  of  the  first 
or  second  officer  of  a  vessel.  It  is  a  part  of  his  duty  to  abstain  from 
setting  a  bad  example  to  the  crew;  he  is  supposed  to  appreciate  the 
necessity  of  strict  discipline  and  obedience  on  ship-board  and  his 
acts  of  disobedience  and  misconduct  will  naturally  be  punished  with 
greater  severity  than  that  of  the  common  seaman.  But  except  in 
extreme  cases  courts  of  admiralty  in  their  guardianship  of  the  rights 
of  seamen  will  punish  even  a  mate  or  a  master  by  deduction  of  wages 
or  otherwise,  rather  than  by  forfeiture.^*     A  seaman  may  be  dis- 

2^  Smith  V.  Treat,  2  Ware  (U.  S.)  1  Low.  (U.  S.)   289,  8  Fed.  Cas.  No. 

270,  4  N.  Y.  Leg.  Obs.   13,   22  Fed.  4327;   Nimrod,  The.  1  Ware  (U.  S.) 

Cas.    No.    13117;    Cornelia   Amsden,  9,  18  Fed.  Cas.  No.  10267;  Sherwood 

The,  5  Ben.  (U.  S.)  315,  6  Fed.  Cas.  v.    Mcintosh,    1   Ware    (U.    S.)    109, 

No.   3234;    Thome  v.  White,   1  Pet.  21  Fed.  Cas.  No.  12778;  Bertha,  The, 

Adm.    (U.  S.)   168,  23  Fed.  Cas.  No.  Ill  Fed.  550;   T.  F.  Oakes,  The,  36 

13989;  Sprague  V.  Kain,  Bee  (U.  S.)  Fed.    442;    Superior,    The,    22    Fed. 

184,  22  Fed.  Cas.  No.  13250;    Black  927;    Jefferson  Borden,  The,  6  Fed. 

V.  Louisiana,  The,  2  Pet.  Adm.    (U.  301;   Magnet,  The,  Brown  Adm.  (U. 

S.)     268,     3     Fed.    Cas.    No.     1461;  S.)  547,  16  Fed.  Cas.  No.  8955;  Relf 

Drysdale  v.   Ranger,   The,   Bee    (U.  v.  Maria,  The,  1  Pet.  Adm.   (U.  S.) 

S.)  148,  7  Fed.  Cas.  No.  4097;  Orne  186,  20  Fed.  Cas.  No.  11692;  Tios  v. 

V.  Townsend,  4  Mason   (U.  S.)    541,  Radovich.  10  La.  Ann.  101,  63  Am. 

18  Fed.  Cas.  No.  10583;  Lady  Camp-  Dec.  592;  Buck  v.  Lane,  12  S.  &  R. 

bell,  The,  2  Hagg.  Adm.  5;   Vibilia,  (Pa.)   266. 

The,    2    Hagg.    Adm.    228;    Mentor,         ^Cornelia   Amsden,    The,    5    Ben. 

The,'  4  Mason    (U.   S.)    84,   17   Fed.  (U.  S.)    315,  6  Fed.  Cas.  No.  3234; 

Cas.   No.   9427;    Johnson   v.   Cyane,  Almatia,  The,  Deady  (U.  S.)  473,  1 

The,   1   Sawy.    (U.  S.)    150,  13  Fed.  Fed.     Cas.     No.     254;     Maria.     The, 

Cas.      No.      7381;      Hutchinson      v.  Blatchf.  &  H.    (U.  S.)    331,  16  Fed. 

Coombs,  1  Ware  (U.  S.)  65,  12  Fed.  Cas.   No.  9071;   Mentor,  The,  4  Ma- 

Cas.    No.    6955;     Idlehour,    The,    63  son    (U.    S.)    84.    17    Fed.    Cas.    No. 

Fed.    1018;    Marsland    v.    Yosemite,  9427;    Black    v.    Louisiana,    The.    2 

The,  18  Fed.  331;    El  Dorado,  The,  Pet.  Adm.   (U.  S.)   268,  3  Fed.  Cas. 


§    3301.]  WAGES    OF   SEAMEN.  630 

charged  on  the  grounds  of  disqualification  or  that  he  is  an  unsafe 
or  unfit  man  to  have  on  board  the  vessel. ^^  Where  a  seaman  is  en- 
gaged under  an  entire  contract  and  is  wrongfully  discharged,  he  is 
entitled  to  recover  his  wages  during  actual  service.-*' 

§  3301.  Discharge  of  seaman — Drunkenness. — Habitual  drunken- 
ness may  or  may  not  be  relied  upon  as  a  ground  of  forfeiture  of  sea- 
men's wages.  If  relied  upon  as  a  defense  in  a  libel  by  a  seaman  for 
his  wages  it  must  be  specially  pleaded  and  in  such  case  the  burden 
is  upon  the  party  making  the  allegation.  There  is  no  fixed  or  definite 
rule  as  to  the  forfeiture  of  wages  on  the  ground  of  habitual  drunken- 
ness. The  maritime  law  looks  with  great  indulgence  on  the  infirmi- 
ties and  temptations  of  the  seaman,  and  it  will  not  decree  forfeiture 
for  occasional  ofi^enses,  but  it  prefers  to  inflict  punishment  by  way  of 
deduction  in  compensation  rather  than  enforce  the  rigid  and  harsh 
rules  of  forfeiture.  The  rule  as  to  the  forfeiture  of  wages  on  account 
of  drunkenness  has  been  stated  thus :  "Wlien  it  is  habitual  and 
gross,  it  may  indeed  be  visited  with  a  total  forfeiture  of  wages;  but 
where  it  is  only  occasional,  or  leaves  much  meritorious  service  be- 
hind, it  is  thought  quite  sufficient  to  recover,  in  damages,  the  amount 
of  the  actual  or  presumed  loss,  resulting  from  such  a  violation  of 
the  mariner's  contract,  and  imperfect  performance  of  duty.  The 
maritime  law  is,  in  this,  as  in  many  other  cases,  founded  on  an  in- 
dulgent consideration  of  human  temptations  and  infirmities.  It  is 
not  insensible  to  the  perils  and  the  hardships,  the  fatigue  and  the 
excitements,  incident  to  the  sea  service ;  and  it  allows  much  for  the 
habitual  thoughtlessness,  irregularity,  and  impetuosity,  which,  with 
much  gallantry  and  humanity,  is  mixed  up  in  the  character  of  sea- 
men. It  deals  out  its  forfeitures,  therefore,  with  a  sparing  hand  and 
aims  to  arrive  at  just  and  equitable  results,  not  by  enforcing  rigid 
and  harsh  rules,  but  by  moderating  compensation  as  well  as  punish- 
ment, so  as  to  apportion  each  to  the  nature  and  extent  of  the  of- 
fense."" 

No.  1461;  Drysdale  v.  Ranger,  The.  (U.  S.)    65,  12  Fed.  Cas.  No.   6955; 

Bee    (U.    S.)    148,   7    Fed.   Cas.    No.  Smith  v.  Treat,  2  Ware  (U.  S.)  270, 

4097;    Relf    v.    Maria,    The.    1    Pet.  22    Fed.    Cas.    No.    13117;    Villa    Y 

Adm.   (U.  S.)   186,  20  Fed.  Cas.  No.  Herman,  The,  101  Fed.  132. 

11692;     Thorne    v.    White,    1    Pet.  -"Frank  C.  Barker,  The,   19  Fed. 

Adm.   (U.  S.)   168,  23  Fed.  Cas.  No.  332;   Heroe,  The.  21  Fed.  525;    Pro- 

13989;    Mentor,    The,    4    Mason    (U.  gresso.  The,  46  Fed.   292;    Haveron 

S.)   84,  17  Fed.  Cas.  No.  9427.  v.  Goelet,  88  Fed.  301. 

*^  Hutchinson  v.  Coombs,  1  Ware  =' Orne  v.  Townsend,  4  Mason  (U. 


631  MISCONDUCT    OF    MASTER   OR   MATE.      [§§    3332-3304. 

§  3302.  Misconduct  of  master  or  mate. — The  same  rule  applies  to 
the  master  and  to  the  mate  as  to  common  seamen.  Where  the  master, 
throughout  an  entire  voyage,  shows  utter  incapacity,  or,  during  such 
time  has  been  continuously  drunk,  he  will  forfeit  his  wages.  But 
where  it  appears  that  his  misconduct  was  such  that  only  a  certain 
amount  of  damages  was  sustained  such  damages  only  should  be  de- 
ducted from  the  amount  due  him.  But  whether  merely  erroneous 
conduct,  without  intentional  guilt,  will  subject  the  master  to  the 
forfeiture  of  his  wages  is  a  different  question.  Where  the  instruc- 
tions were  clear,  positive  and  precise  and  there  was  proof  of  wilful 
disobedience,  it  might  be  sufficient  to  forfeit  his  wages,  though  no 
evil  consequences  actually  resulted;  but  such  could  not  be  the  case 
where  the  instructions  were  not  clear  and  positive,  and  where  it  was 
made  to  appear  that  the  master  was  not  put  in  possession  in  the  most 
intelligent  form,  of  the  real  intention  of  the  owners  of  the  vessel,  or 
where  it  was  left  to  the  master  to  exercise  any  judgment.^^ 

§  3303.  Recovery  of  wages — Vessel  unladen. — By  the  terms  of  the 
statute  the  wages  of  seamen  become  due  "as  soon  as  the  voyage  is 
ended  or  the  cargo  or  ballast  be  fully  discharged  at  the  last  port  of 
delivery .''  Hence,  in  an  action  for  the  recovery  of  wages  or  to  en- 
force a  lien,  the  burden  of  proof  is  upon  the  libelant  to  show  that 
the  vessel  has  been  discharged  of  her  cargo.  It  is  not  sufficient  to 
prove  in  such  an  action  that  the  vessel  had  arrived  at  the  port  of 
destination,  or  that  the  vessel  had  been  moored  at  the  port  for  a 
certain  time  less  than  fifteen  days.  The  duty  of  the  seamen  to  con- 
tinue with  the  vessel  and  aid  in  unloading  her  is,  under  the  maritime 
law,  regarded  as  incident  to  his  hiring,  and  he  is  usually  so  bound 
by  his  articles.^® 

§  3304.  Time  of  unloading  vessel — Presumption. — Courts  will 
carefully  guard  the  rights  of  seamen  after  the  termination  of  a  voyage. 
Their  wages  will  not  be  forfeited  on  the  grounds  of  desertion  be- 

S.)    541,    18    Fed.    Cas.    No.    10583;  -'*  Thomas  Worthington,  The,  3  W. 

Cornelia  Amsden,  The,   5  Ben.    (U.  Rob.  128,   12   Jur.  1057,  6  Notes  of 

S.)  315,  6  Fed.  Cas.  No.  3234;   Sher-  Cases  570. 

wood  V.  Mcintosh,  1  Ware    (U.  S.)  -■'Martha,  The,  Blatchf.  &  H.    (U. 

109,    21    Fed.   Cas.   No.    12778;    Gar-  S.)  151,  16  Fed.  Cas.  No.  9144;  Bal- 

net,   The,  3   Sawy.    (U.   S.)    350,  10  tic   Merchant,   The.   Edw.   Adm.   86, 

Fed.    Cas.    No.    5244;     Duchess    of  91;    Granon  v.  Hartshorne.  Blatchf. 

Kent,  The,  1  W.  Rob.  283.    .  &  H.  454,  10  Fed.  Cas.  No.  5689. 


§§  3305,  3306.]  wages  of  seamen.  632 

fore  the  ship  is  unladen  if  there  has  been  an  unreasonable  delay  in 
discharging  the  cargo.  The  statute  in  some  instances  has  fixed  a 
certain  number  of  days  for  discharging  the  cargo  of  vessels.  Where 
this  statutory  period  of  time  has  elapsed,  in  the  absence  of  proof  the 
courts  will  presume  that  sufficient  time  has  been  given  for  the  dis- 
charge of  the  cargo  and  this  presumption  is  sufficient  to  justify  a 
recovery  without  proof  that  the  vessel  was  in  fact  unladen.^" 

§  3305.  Wages — Increase. — Where  part  of  the  seamen  for  any 
reason  leave  or  desert  a  vessel  in  a  foreign  port  and  the  master  or 
captain  then  makes  a  new  contract,  without  coercion,  with  the  re- 
maining sailors  and  promises  to  give  extra  compensation  if  they  will 
continue  to  ship  with  the  vessel  for  the  remainder  of  the  voyage  with 
a  diminished  number  of  mariners,  it  has  been  held  that  the  contract 
is  valid  and  that  the  seamen  may  recover  the  additional  compensation 
promised.^^ 

§  3306.  Loss  of  ship — Effect  on  wages. — The  old  and  the  uni- 
versal rule  of  maritime  law  was  that  in  case  of  the  wreck  and  loss 
of  a  ship  on  her  voyage  the  seamen  lost  their  entire  wages. ^^  This 
rule  was  founded  upon  what  was  called  an  old  figment  of  law  to  tlie 
effect  that  "freight  is  the  mother  of  wages,"  and  that  where  no 
freight  was  earned  no  wages  could  be  recovered.^"  This  rule  has 
been  changed  by  the  statute  in  England  which  provided  that  in  all 
cases  of  the  wreck  or  loss  of  the  ship,  every  surviving  seaman  shall 
be  entitled  to  his  wages  up  to  the  period  of  the  wreck  or  loss  of  the 
ship,  whether  such  ship  shall  or  shall  not  have  previously  earned 
freight;  provided  the  seaman  shall  produce  a  certificate  from  the 
master  or  chief  surviving  officer  of  the  ship,  to  the  effect  that  he  had 
exerted  himself  to  the  utmost  to  save  the  ship,  cargo  and  stores. 

^"Martha,  The.  Blatchf.  &  H.    (U.  ^=  Adams  v.  Sophia,  The,  Gilp.  (U. 

S.)     151,    16    Fed.    Cas.    No.    9144;  S.)  77,  1  Fed.  Cas.  No.  65;  Davis  v. 

Granon    v.    Hartshorne,    Blatchf.    &  Leslie,    Abb.    Adm.    (U.    S.)    123,    7 

H.    (U.    S.)    454,    10   Fed.    Cas.    No.  Fed.  Cas.  No.  3639;  Neptune,  The,  1 

5689;    Baltic    Merchant,    The,    Edw.  Hagg.  Adm.  227,  239. 

Adm.  86,  91.  ^'  Dunnett  v.  Tomhagen,  3  Johns. 

51  Hartley  v.  Ponsonby,  7  El.  &  Bl.  (N.  Y.)  154;  Lewis  v.  Elizabeth  and 

872,    90    E.    C.    L.    871;    Turner    v.  Jane,  The,   1   Ware    (U.   S.)    41,   15 

Owen,  3  Fost.  &  F.  176;  Clutterbuck  Fed.  Cas.  No.  8321;    Saratoga,  The, 

v.  Coffin,  3  M.  &  G.  842,  42  E.  C.  L.  2   Gall.    (U.   S.)    164,   6   Hall.   L.   J. 

438;  but  see,  Harris  v.  Carter,  3  El.  12,  21  Fed.  Cas.  No.  12355. 
&  Bl.  559,  77  E.  C.  L.  559. 


633  EFFECT  OF  DESEKTIOX.  [§  3307. 

Under  this  statute  the  proof  of  the  loss  of  the  ship  and  the  produc- 
tion of  such  a  certificate  would  be  sufficient  to  entitle  the  seaman  to 
recover.  But  the  question  has  arisen  as  to  whether  or  not  in  case  of 
loss  of  the  ship's  officers  or  their  refusal  to  give  such  certificate  the 
seaman  can  recover.  Or,  stating  the  proposition  differently,  is  the 
production  of  the  certificate  a  condition  precedent  to  the  right  of  re- 
covery? This  principle  is  fully  covered  in  the  opinion  of  district 
Judge  Betts,  where  he  says:  "I  do  not  think  it  imposes  an  absolute 
condition  precedent  to  the  right  of  recovery.  It  introduces  no  new 
requirement  of  duty  to  be  performed  by  the  seamen.  The  law  mari- 
time exacts  of  them  the  same  diligence  and  fidelity  of  service  through- 
out the  whole  period  of  their  employment.  Although  the  voyage 
may  be  uninterruptedly  prosperous  and  safe,  yet  the  mariner  who, 
upon  any  occasion,  from  its  inception  to  its  close,  shall  refuse  to 
exert  himself  to  his  utmost  in  the  discharge  of  his  duties  on  lioard, 
will  either  entirely  forfeit  his  wages  for  the  voyage,  or  become  sub- 
ject to  damages  or  mulct  in  diminution  of  them.  The  proviso  desig- 
nates a  mode  of  proof,  which  is  the  primary  and  highest  evidence 
of  the  fact  to  be  established,  but  secondary  evidence  is  not  excluded 
expressly,  and  the  equitable  and  salutary  purposes  of  a  remedial  and 
eminently  beneficial  statute  will  not  be  defeated  by  a  construction 
which  is  strictly  technical.  The  construction  should  be  liberal,  in 
order  to  give  effect  to  the  remedy.  The  mode  of  proof  designated  is 
one  over  which  those  to  be  benefited  by  the  provision  have  no  con- 
trol, nor  is  there  any  process  furnished  them  to  enforce  the  giving 
the  certificate.  It  is  the  sole  act  of  the  master,  and  I  think  there  is 
cogent  for  holding  that,  by  the  true  import  of  the  section,  this  im- 
portant act  of  justice  to  mariners  is  not  to  be  left  to  the  master's 
discretion  or  to  his  interest  or  caprice;  that  it  is  his  duty,  in  a  case 
coming  within  the  statute,  to  furnish  the  certificate,  or  to  show  satis- 
factory reasons  for  not  doing  so,  otherwise  the  courts  will  accept 
other  evidence  as  a  legal  substitute  for  the  certificate,  regarding  the 
proviso  as  alike  directory  to  the  master  and  to  the  men."^* 

§  3307.  Effect  of  desertion. — Tlie  general  rules  of  maritime  law 
on  the  subject  of  desertion  were  so  uncertain  and  gave  the  master 
or  owners  of  a  vessel  such  discretionary  powers  in  forfeiting  the 
wages  of  seamen  that  the  whole  subject  has  been  covered  in  the  United 
States  by  statute.     By  such  statutes  absence  from  the  vessel  without 

'^  Davis  V.  Leslie,  Abb.  Adm.    (U.  S.)  123,  7  Fed.  Cas.  No.  3639. 


§    3308.]  WAGES    OF    SEAMEN.  634 

leave  constitutes  desertion,  forfeits  the  wages  earned,  and  removes 
all  inquiry  into  the  purpose  or  cause  of  such  leaving.  However,  the 
law  very  reasonably  allows  the  sailor  forty-eight  hours  in  which  he 
may  return  to  the  vessel  and  forfeit  three  days'  wages  only  for  his 
misfeasance.  The  law  requires  that  the  absence  of  the  seaman  shall 
be  entered  on  the  log-book  on  the  day  that  it  occurred,  and  that  the 
entry  shall  state  the  absence  to  be  without  leave.  And  it  is  the  rule 
that  no  desertion  can  be  established  against  a  seaman  except  con- 
formable to  the  statutory  direction.  Evidence  of  codes  or  usages 
of  other  nations  which  are  conflicting  or  inconsistent  with  the  stat- 
ute is  inadmissible  to  contradict  or  change  the  statutory  rule.^^  It 
has  been  held  that  desertion  or  absence  without  leave  must  be  noted 
in  the  log-book  on  the  day  it  actually  occurs,  or  it  will  not  operate 
as  a  forfeiture  of  wages.^''  But  some  more  recent  cases  under  a 
different  statute  have  held  that  the  entry  of  the  desertion  in  the  log- 
book is  not  necessarily  a  condition  of  forfeiture  of  wages.^^ 

§  3308.  Desertion — ^End  of  voyage. — A  desertion  within  the  terms 
of  the  statute  forfeits  all  claim  to  wages.  But  the  proof  must  bring 
the  act  of  desertion  clearly  within  the  statutory  provision.  Accord- 
ing to  the  statute  the  desertion  must  have  occurred  during  the  con- 
tinuance of  the  voyage  and  the  voyage  is  held  to  terminate  when  the 
vessel  arrives  and  is  moored  at  her  port  of  destination.  The  dis- 
tinction must  be  maintained  between  a  forfeiture  of  wages  on  the 
ground  of  desertion  and  the  right  of  the  seaman  to  recover  his  wages. 
The  desertion  which  forfeits  the  wages  must  have  occurred  during 
the  voyage;  the  voyage  denotes  the  transit  to  be  performed  by  the 

="5  Martha,  The,  Blatchf.  &  H.    (U.  207,  14  Fed.  Cas.  No.  7872;   Martha, 

S.)  151,  16  Fed.  Cas.  No.  9144;  John  The,  Blatchf.  &  H.    (U.  S.)    151,  16 

Martin,  The,  2  Abb.   (U.  S.)  172,  13  Fed.  Cas.  No.  9144;   Quintero,  The, 

Fed.    Cas.    No.    7357;    Cloutman    v.  1  Low.  (U.  S.)  38,  20  Fed.  Cas.  No. 

Tunison,    1    Sumn.    (U.    S.)    373,    5  11517;    Sarah  Jane,  The,  Blatchf.  & 

Fed.  Cas.  No.  2907;   Herron  v.  Peg-  H.    (U.   S.)    401,   21   Fed.   Cas.   No. 

gy.    The,   Bee    (U.    S.)    57,   12   Fed.  12348;   Wood  v.  Nimrod,  The,  Gilp. 

Cas.  No.  6427;   Phoebe,  The,  v.  Dig-  (U.  S.)   83,  30  Fed.  Cas.  No.  17959; 

num,   1  Wash.    (U.  S.)    48,  19   Fed.  Magee  v.  Moss,   The,  Gilp.    (U.  S.) 

Cas.    No.    11110;    Piehl   v.    Balchen,  219,  16  Fed.  Cas.  No.  8944. 

01c.    (U.    S.)    24,   19   Fed.   Cas.    No.  "Scott  v.   Rose,    2   Low.    (U.    S.) 

11137.  381,    21   Fed.   Cas.   No.   12545;    Wel- 

="  Phoebe,     The,     v.     Dignum,     1  come  v.  Yosemite,  The,  18  Fed.  383. 

Wash.   (U.  S.)   48,  19  Fed.  Cas.  No.  See  also,  Marjory  Brown,  The,  134 

11110;    Douglass  v.  Eyre,  Gilp.    (U.  Fed.  999.     But  compare  W.  F.  Bab- 

S.)     147,    7    Fed.    Cas.     No.     4032;  cock,  The,  85  Fed.  978. 
Knagg  V.   Goldsmith,  Gilp.    (U.   S.) 


635  DESERTION   AND   RETURN.  [§    3309. 

seaman,  and  the  term  is  used  in  this  sense  in  marine  law.  His  duties 
as  mariner  end  when  the  vessel  is  moored  at  her  port  of  destination ; 
his  labors  after  tliat  are  those  of  a  stevedore  or  common  laborer  and 
he  is  required  to  perform  this  by  reason  of  his  contract  or  as  an  inci- 
dent to  the  hiring.  This  labor  of  unlading  the  vessel  must  be  per- 
formed before  he  can  recover  his  wages.  The  penalty  for  failing  to 
perform  this  labor  is  entirely  different  from  that  imposed  by  deser- 
tion. On  these  grounds  it  has  been  expressly  held  that  a  statutory 
desertion  cannot  be  shown  after  the  vessel  has  ended  her  voyage.^® 
So,  where  a  seaman  becomes  sick  and  is  sent  from  the  ship  to  a  hospi- 
tal in  a  foreign  port,  and  the  vessel  leaves  before  the  seaman  is 
sufficiently  recovered  to  join  them,  he  cannot  be  regarded  as  absent 
without  leave  so  as  either  to  forfeit  or  stop  his  wages.  The  absence 
on  account  of  sickness  is  presumed  to  be  with  leave.^^  Where  a 
vessel  attempts  to  invoke  the  statutory  penalty  for  desertion  it  must 
prove  such  desertion  according  to  the  statutes.**^ 

§  3309.  Desertion  and  return. — As  previously  observed,  desertion, 
that  is,  leaving  the  vessel  with  the  intention  of  not  returning,  works 
a  forfeiture  of  a  seaman's  wages.  But  if  thereafter  the  seaman  re- 
turns the  law  will  not  consider  it  as  a  case  of  total  forfeiture,  but 
rather  as  one  for  compensation  and  indemnity  to  the  owners  for  the 
loss  of  such  service ;  a  seaman  is  punished  and  the  owners  sufficiently 
indemnified  by  a  proper  deduction  from  his  wages.  The  law  seeks 
to  protect  the  seaman  against  the  avarice  and  arrogance  of  the  mas- 
ter and  the  vessel.  This  principle  is  thus  stated:  "The  law  looks 
with  indulgence  on  the  faults  of  seamen  when  they  are  free  from 
malignity   and   arise   from   thoughtlessness,   improvidence,   and   with 

^Martha.  The,  Blatchf.  &  H.    (U.  Kollock,  3  Ware  (U.  S.)  45,  10  Fed. 

S.)     151,    16    Fed.    Cas.    No.    9144;  Cas.  No.  5409;  Union,  The,  Blatchf. 

Granon  v.  Hartshorne,  Blachf.  &  H.  &  H.   (U.  S.)    545,  24  Fed.  Cas.  No. 

(U.  S.)   454,  10  Fed.  Cas.  No.  5689;  14347;    Mary,  The,  1  Ware    (U.  S.) 

Annie  M.  Smull,  The,  2  Sawy.    (U.  454,   1  L.  R.  157,   20  Am.  Jur.  421, 

S.)    226,  1  Fed.  Cas.  No.   423;    Ed-  16  Fed.  Cas.  No.  9191;   Edwards  v. 

ward,   The,   Blatchf.   &  H.    (U.   S.)  Susan,   The,   1   Pet.   Adm.    (U.    S.) 

286,  8  Fed.  Cas.  No.  4289;  Elizabeth  165,   8   Fed.   Cas.   No.   4299;    Baltic 

Frith,  The,   Blatchf.   &  H.    (U.    S.)  Merchant.  The.  Edw.  Adm.  86. 

195,    8    Fed.    Cas.    No.    4361;    Eliza-  =«  Nevitt    v.    Clarke,    01c.    (U.    S.) 

beth.  The,  v.  Kickers,  2  Paine    (U.  316,  18  Fed.  Cas.  No.  10138. 

S.)  291,  8  Fed.  Cas.  No.  4353;  Clout-  «John    Martin.    The,    2   Abb.    (U. 

man  v.  Tunison,   1   Sumn.    (U.   S.)  S.)  172,  13  Fed.  Cas.  No.  7357. 
373.  5  Fed.  Cas.  No.  2907;  Gifford  v. 


§§    3310,    3311.]  WAGES    OF    SEAMEN.  636 

want  of  consideration  which  is  so  characteristic  of  them  as  a  class. 
In  such  cases  it  inflicts  its  penalties  with  gentleness  and  reluctance; 
and  in  so  doing  it  will  look  to  the  conduct  of  the  officers  toward  the 
men  as  well  as  make  some  allowances  for  the  habitual  improvidence 
of  the  men.  And  this  it  will  especially  do,  when  such  conduct  may 
in  any  way  have  tended  to  produce  the  fault  which  it  has  sought  to 
punish."*^ 

§3310.     Short   allowance   of  provisions — Effect   on  wages. — The 

statute  gives  a  day's  extra  wages  to  the  seaman  for  each  day  he  is 
kept  on  short  allowance.  But  it  seems  that  recovery  for  the  increase 
of  wages  can  only  be  had  where  it  is  shown  that  the  required  quantity 
of  provisions  is  not  on  board  the  vessel.  The  rule  is  that  where  the 
vessel  is  sufficiently  supplied  with  stores  the  distribution  is  in  the 
discretion  of  the  master,  and  in  such  case  the  remedy  for  being  put 
on  short  allowance  must  be  by  an  action  for  damages.^^  The  master 
may  justify  himself  for  a  failure  to  furnish  the  provisions  required 
by  law  by  showing  his  inability  to  procure  the  enumerated  articles 
in  foreign  ports  and  by  further  showing  that  he  did  furnish  as  sub- 
stitutes and  equivalents  other  good  and  wholesome  articles  of  food. 
He  may  also  justify  a  short  allowance  by  proof  of  diminished  pro- 
visions on  account  of  accidents,  or  on  account  of  an  unusually  and 
unexpectedly  prolonged  voyage.*^  ^\nien  the  proof  shows  a  short 
allowance  of  the  three  articles  required  by  statute,  the  libelants  are 
entitled  to  claim  triple  extra  wages  for  each  day  of  such  short  al- 
lowance.^* 

§  3311.     Short  allowance  of  provisions — Burden   of  proof. — The 

burden  is  on  the  libelants  to  show  that  the  allowance  was  not  in  a 

«Gifford  V.  Kollock,  3  Ware   (U.  No.   9086;    Mary,  The,  1  Ware    (U. 

S.)  45,  19  L.  R.  21,  10  Fed.  Cas.  No.  S.)    454,  1   L.   R.   157,   20  Am.   Jur. 

5409.  421,  16  Fed.  Cas.  No.  9191;    Foster 

"Mariners  v.  Washington.  The,  1  v.  Sampson,  1  Sprague  (U.  S.)  182, 

Pet.  Adm.   (U.  S.)   219,  16  Fed.  Cas.  9  Fed.  Cas.  No.  4982;  Mary  Paulina, 

No.  9086;    Childe  Harold,  The,  01c.  The,  1  Sprague   (U.  S.)  45,  16  Fed. 

(U.  S.)    275,  5  Fed.  Cas.  No.  2676;  Cas.  No.   9224;    Broux  v.   Ivy,  The, 

Collins  v.  Wheeler,   1    Sprague    (U.  62  Fed.  600;    Hermon,  The,  1  Low. 

S.)     188,     6    Fed.     Cas.    No.     3018;  (U.  S.)   515,  12  Fed.  Cas.  No.  6411; 

H.  E.  Thompson,  The  v.  Martin,  16  Coleman   v.   Harriet,   The,   Bee    (U. 

App.   Cas.    (D.   C.)    222.     See,  Mur-  S.)  80,  6  Fed.  Cas.  No.  2982. 

ray  v.  Ferry  Boat,  2  Fed.  86.  "  Collins    v.    Wheeler,    1    Sprague 

"Mariners  v.  Washington,  The,  1  (U.  S.)  188,  6  Fed.  Cas.  No.  3018. 
Pet.  Adm.  (U.  S.)   219,  16  Fed.  Cas. 


637 


SHORT   ALLOWANCE — BURDEN    OF    PROOF, 


[§    3311. 


reasonable  amount,  that  it  was  not  enough  for  the  ordinary  consump- 
tion of  a  man.  There  is  no  fixed  rule  as  to  what  this  reasonable 
amount  is,  but  it  has  been  held  proper  to  take  the  amount  of  rations 
fixed  by  the  statute  in  the  army  and  navy,  and  that  proof  of  an 
amount  furnished  to  seamen  equal  to  or  less  than  two-thirds  of  the 
army  rations  was  an  insufficient  allowance;  and  it  was  immaterial 
that  some  of  the  seamen  did  not  consume  the  whole  of  the  allow- 
ance where  it  further  appeared  that  their  savings  were  locked  in 
their  chests,  as  it  was  regarded  a  matter  of  prudence  that  they  should 
practice,  under  the  circumstances,  the  utmost  frugality.*^  But  in 
an  action  for  such  increased  wages  the  rule  is  that  where  the  proof 
shows  that  the  libelants,  the  seamen,  were  put  on  short  allowance, 
the  burden  is  then  on  the  master  to  prove  that  the  vessel  had  on 
board  the  legal  quantity  of  provisions,  in  order  to  bring  himself 
within  the  construction  of  the  statute."  But  some  district  courts 
have  held  that  the  burden  is  on  the  libelants  to  prove  both  the  serv- 
ice of  the  short  allowance  and  that  the  vessel  had  an  insufficient  sup- 
ply of  provisions  on  board. ^^ 


«Mary,  The,  1  Ware  (U.  S.)  454, 
1  L.  R.  157,  20  Am.  Jur.  421,  16  Fed. 
Cas.  No.  9191;  John  L.  Dimmick, 
The.  3  Ware  (U.  S.)  196,  9  Am.  L. 
Reg.  224,  13  Fed.  Cas.  No.  7355.  See, 
Recovery,  The,  1  Stuart's  Vice-Adm. 
(L.  C.)  128. 


H.  (U.  S.)  195,  8  Fed.  Cas.  No.  4361; 
Piehl  V.  Balchen,  Ole.  (U.  S.)  24, 
19  Fed.  Cas.  No.  11137. 

"Childe  Harold,  The,  01c.  (U.  S.) 
275,  5  Fed.  Cas.  No.  2676;  John  L. 
Dimmick,  The,  3  Ware  (U.  S.)  196, 
9  Am.  L.  Reg.  224,  13  Fed.  Cas.  No. 


«  Elizabeth  Frith,  The,  Blatchf.  &     7355. 


CHAPTER  CLXIV. 


LOG-BOOK. 

Sec.  Sec. 

3312.  Prima  facie  evidence.  3316.  Varied  by  parol. 

3313.  Admissibility.  3317.  As  evidence  of  desertion  and 

3314.  Weight  and  competency.  wages. 

3315.  Conclusiveness. 

§  3312.  Log-book — Prima  facie  evidence. — The  log-book  is  a  pub- 
lic document  recognized  in  courts  of  admiralty.^  It  is  required  by 
law  to  be  kept  in  certain  classes  of  vessels,  and  in  fact  is  universally 
found  on  board  merchant  vessels.  The  log-book  is  the  journal  of 
the  voyage  and  is  kept  either  by  the  master  or  the  mate,  and  is  a 
record  of  the  transactions  occurring  on  the  vessel  from  day  to  day. 
In  questions  of  prize  and  of  average  and  of  seamen's  wages,  and  in 
some  other  particulars  it  is  regarded  as  of  the  highest  importance.^^ 
By  the  rules  of  law  as  well  as  of  custom  and  usage  the  log-book 
should  contain  the  facts  relating  to  the  business  of  lading,  unlading 
and  navigating  the  vessel,  and  the  course,  progress  and  incidents  of 
the  voyage,  and  the  employment  and  conduct  of  tlie  crew.  The  log- 
book is  prima  facie  evidence  of  the  truth  of  all  matters  properly  en- 
titled to  be  entered  therein;  the  burden  of  proof  is  upon  the  party 
who  denies  the  correctness  of  any  proper  entry  to  overcome  this 
prima  facie  effect.^ 

§■  3313.  Admissibility. — The  log-book  is  admissible  in  evidence  as 
any  other  document.    Before  it  can  be  admitted  as  such  it  must  be 

iRundle    v.    Beaumont,    4    Bing.  147,  7  Fed.  Cas.  No.  4032;    Thomp- 

537;  D'Israeli  v.  Jowett,  1  Esp.  427.  son    v.    Philadelphia,    The.    1    Pet. 

^Jacobsob  Sea  Laws  7791;   Malta,  Adm.   (U.  S.)   210,  23  Fed.  Cas.  No. 

The,  2  Hagg.  Adm.  158;   Watson  v.  13973;    Knagg    v.    Goldsmith,    Gilp. 

King,    4    Campb.    272;    D'Israeli    v.  (U.  S.)   207,  14  Fed.  Cas.  No.  7872; 

Jowett,    1    Esp.    427;    Smallwood   v.  Hercules,   The,    1    Sprague    (U.    S.) 

Mitchell,  2  Hayw.  (N.  Car.)  145.  534,  12  Fed.  Cas.  No.  6401;   City  of 

=>  Douglass  v.  Eyre,  Gilp.    (U.   S.)  Carlisle.  The,  39  Fed.  807. 

638 


639  WEIGHT   AND    COilPETENCY.  [§    331-i. 

properly  and  sufficiently  identified.  The  proof  should  show  that  it 
was  the  identical  book  kept  on  the  vessel  during  a  particular  voy- 
age. The  mere  notice  by  the  adverse  party  to  produce  the  log-book 
is  not  a  sufficient  identification,  except  for  tlie  party  giving  the 
notice.  Nor  is  the  name  or  title  written  or  printed  on  the  book  a 
sufficient  identification.*  It  has  been  held  a  sufficient  identification, 
however,  where  a  witness  testified  that  the  bills  for  lading  were  made 
from  the  book  and  that  in  the  opinion  of  the  witness  it  was  the  particu- 
lar log-book  kept  on  the  voyage,  though  he  did  not  remember  seeing 
the  mate  make  regular  entries  in  it,  and  where  it  further  appeared 
that  the  mate  could  not  be  found.'""' 

§  3314.  Weight  and  competency. — The  courts  are  not  uniform  on 
the  proposition  as  to  whether  the  log-book  is  evidence  in  favor  of  the 
vessel  or  of  the  person  by  whom  it  was  kept.  It  has  been  held  tliat 
it  could  not  be  so  used  by  a  party  in  his  favor.''  On  the  question 
of  the  competency  and  weight  of  the  log-book  as  evidence  Sir  William 
Scott  said:  "I  must  observe,  that  the  evidence  of  the  log-book  is  to 
be  received  with  jealousy  where  it  makes  for  the  parties,  as  it  may 
have  manufactures  for  the  purpose;  but  it  is  evidence  of  the  most 
authentic  kind  against  the  parties,  because  they  cannot  be  supposed 
to  have  given  a  false  representation  with  a  view  to  prejudice  them- 
selves. The  witnesses,  when  they  speak  to  a  fact,  may  perhaps  be 
aware,  that  it  has  become  a  point  of  consequence,  and  may  qualify 
their  account  of  past  events  so  as  to  give  colourable  effect  to  it.  But 
the  journal  is  written  beforehand,  and  by  persons  unacquainted,  per- 
haps, with  any  intention  of  fraud,  and  may  therefore  be  securely  re- 
lied on  wherever  it  speaks  to  the  prejudice  of  its  authors."'^  And  it 
has  been  held  that  a  captain  of  a  vessel  testifying  as  a  witness  may 
refresh  his  recollection  by  reference  to  the  log-book.*  Judge  Story 
said:  "But  I  am  yet  to  learn  that  parties  can  thus  create  evidence 
for  themselves  by  inserting  facts  in  a  log-book.""     But  in  some  in- 

*  United     States     v.     Mitchell,     2  ^Eleanor,    The,    Edw.    Adm.    135, 

Wash.  (U.  S.)  478,  26  Fed.  Cas.  No.  163;  L'Etoile.  The,  2  Dods.  106,  113; 

15791.  Constitution,   The,   10  Jur.    (N.   S.) 
=  United     States     v.     Mitchell,     3  831.    See  also,   Lamington,   The.   87 

Wash.   (U.  S.)   95,  26  Fed.  Cas.  No.     Fed.    752:     Newfoundland,    The.    89 

15792.  Fed.  510. 

"  Sociedade  Feliz,  The,  1  W.  Rob.  "  Anderson    v.    Whalley,   3    Car.   & 

303,  311;    Henry  Coxon,  The,  L.  R.  Kir.  54. 

3  P.  D.  156,  4  Asp.  18;  Price  v.  Earl  "United  States  v.  Gibert,  2  Sumn. 

of  Torrington,  1  Salk.  285.     .  (U.    S.)    19,    79,    25    Fed.    Cas.    No. 


§§  3315,  3316.]  LOG-BOOK.  640 

stances  it  has  been  held  that  the  entry  in  the  log-book  is  indis- 
pensable.^"  The  competency  of  the  log-book  is  governed  by  the  lex 
fori  and  the  rule  in  the  British  merchants'  shipping  act  cannot  con- 
trol the  admission  of  the  log  in  courts  in  the  United  States.^^ 

§  3315.  Conclusiveness. — The  rule  that  the  log-book  is  not  con- 
clusive evidence  of  the  facts  therein  stated  is  universally  conceded. 
The  statute  which  requires  certain  things  to  be  stated  in  the  log- 
book as  a  condition  of  its  admissibility  does  not  make  it  conclusive 
on  such  matters.^ ^  It  has  been  held  that  the  log  is  conclusive  against 
the  person  making  it  in  the  absence  of  conclusive  evidence  showing 
a  mistake.  This  rule  was  thus  stated  by  a  district  judge:  "The  log 
being  intended  to  be  a  correct  record  of  the  facts  contained  therein, 
and  entry  made  with  full  knowledge  and  opportunity  of  ascertain- 
ing the  truth  must  be  accepted  as  the  truth  if  it  tells  against  the 
party  making  it,  and  can  be  denied  no  more  than  a  deed.  If  it  is 
the  result  of  a  mistake  there  must  be  conclusive  evidence  of  the 
mistake."^^ 

§  3316.  Varied  by  parol. — In  the  cases  where  tlie  log-book  is  made 
conclusive  by  statute  on  the  showing  required  it  is  binding  and  can- 
not be  varied  or  controlled.  But  the  general  rule  is  that  the  entries 
in  a  log-book  may  be  varied  or  controlled  by  parol  evidence;  or,  the 
rule  is  sometimes  stated  that  parol  evidence  is  admissible  to  falsify 
the  entries  in  a  log-book.^*    So  parol  evidence  is  proper  either  to 

15204;   United  States  v.  Sharp,  Pet.  Townsend,    4    Mason     (U.    S.)    541, 

(C.  C.)   118,  27  Fed.  Cas.  No.  16264.  547,  18  Fed.  Cas.  No.  10583. 

•"Knagg   v.    Goldsmith,    Gilp.    (U.  ^=  Newfoundland,  The,  89  Fed.  510; 

S.)   207,  14  Fed.  Cas.  No.  7872;   Ma-  Bewge  v.  Utopia,  The,  1  Fed.  892. 

lone  v.   Bell,   1   Pet.  Adm.    (U.   S.)  "  Orne  v.  Townsend,  4  Mason  (U. 

139,      16      Fed.      Cas.      No.      8994;  S.)  541,  547,  18  Fed.  Cas.  No.  10583; 

Hercules,   The,   1    Sprague    (U.    S.)  Malone  v.  Bell,  1  Pet.  Adm.  (U.  S.) 

534,  12  Fed.  Cas.  No.  6401.  139,   16   Fed.   Cas.   No.   8994;    Whit- 

"City    of    Carlisle,    The,    39    Fed.  ton  v.  Commerce,  The,  1  Pet.  Adm. 

807.  (U.  S.)   160,  29  Fed.  Cas.  No.  17604; 

^-United      States     v.      Gibert,      2  Jones  v.  Phoenix,  The,  1  Pet.  Adm. 

Sumn.   (U.  S.)   19,  25  Fed.  Cas.  No.  (U.  S.)   201,  13  Fed.  Cas.  No.  7489; 

15204;  Jones  V.  Phoenix,  The,  1  Pet.  Worth  v.  Mumford,  1  Hilt.   (N.  Y.) 

Adm.   (U.  S.)   201,  13  Fed.  Cas.  No.  1;    Hercules,  The,  Sprague    (U.  S.) 

7489;  Rovena,  The,  1  Ware  (U.  S.)  534,   12  Fed.  Cas.  No.  6401;   Sarah 

309,     20      Fed.      Cas.      No.      12090;  Jane,    The,    Blatchf.   &    H.    (U.    S.) 

Hercules,   The,   1    Sprague    (U.   S.)  401,  21  Fed.  Cas.  No.  12348. 
534,  12  Fed.  Cas.  No.  6401;   Orne  v. 


641  AS    EVIDENCE   OF    DESEUTIOX    AND   AVAGES.  [§    3317. 

impeach  the  log  or  to  show  that  matters  have  been  interpolated 
therein,  or  that  the  entry  was  not  made  on  the  day  on  which  it  pur- 
ports to  have  been  made.^^ 

§  3317.  As  evidence  of  desertion  and  wages. — The  United  States 
statutes  make  the  log-book  evidence  in  matters  of  desertion  and  the 
wages  of  seamen.  On  an  interpretation  of  these  statutes  it  has  been 
held  that  the  log-book  is  not  admissible  as  to  any  fact  other  than 
as  required  by  the  statute.^''  The  statute  requires  the  entry  of  the  oc- 
currence to  be  made  in  the  log-book  on  the  day  on  which  it  actually 
transpired.  The  statute  must  be  strictly  complied  with  in  order  to 
render  the  log-book  admissible.  This  principle  was  stated  by  a 
district  judge  as  follows:  "One-half  of  the  attempts  of  masters  to 
bar  seamen  of  the  recovery  of  their  wages,  which  have  passed  under 
the  observation  of  this  court,  are  founded  not  directly  upon  tlie  act 
of  misconduct  alleged,  but  are  excited  by  some  after  occurrence,  as 
a  prosecution  for  wages  or  f©r  assault  and  battery,  or  by  some  irrita- 
tion of  personal  feelings  on  the  part  of  tlie  master  or  his  officers, 
under  the  influence  of  which  the  master  seeks  to  give  to  all  preced- 
ing misconduct  of  his  men  the  most  odious  colorings,  and  to  demand 
a  forfeiture  of  wages  for  alleged  desertions  not  denounced  as  suc!i 
at  the  time  they  occurred.  The  courts,  therefore,  for  the  protection 
of  seamen,  exact  from  tlie  master  the  most  rigid  compliance  witli 
the  requisitions  of  the  act  in  this  behalf."^^  In  some  instances,  as 
already  shown,  the  statute  provides  tliat  an  entry  of  the  occurrence 
shall  be  made  in  the  official  log-book  on  the  same  day;  that  in  any 
subsequent  legal  proceedings  the  entry  therein  shall  be  produced  or 
proved ;  and  that,  in  default  thereof,  tbe  court  may  decline  to  receive 
evidence  of  the  offense.     In  a  recent  case,  however,  it  was  held  t]u\t  a 

'^  Worth  V.  Mumford,  1  Hilt.    (N.  v.   Peggy,  The,  Bee    (U.   S.)    57,   12 

Y.)  1.  Fed.    Cas.    No.    6427;    Phoebe,    The, 

"Jones   V.   Phoenix,    The,    1   Pet.  v.  Digniim,  1  Wash.   (U.  S.)   48,  19 

Adm.   (U.  S.)   201,  13  Fed.  Cas.  No.  Fed.     Cas.     No.     11110;     Knagg    v. 

7489;     United    States    v.    Gibert,    2  Goldsmith,    Gilp.     (U.    S.)     20?.    14 

Sumn.   (U.  S.)   19,  25  Fed.  Cas.  No.  Fed.    Cas.    No.    7872;     Douglass    v. 

15204.  Eyre,  Gilp.   (U.  S.)   147,  152,  7  Fed. 

"Martha,    The,    1    Blatchf.    &    H.  Cas.  No.  4032;  Cloutman  v.  Tunison, 

(U.  S.)   151,  16  Fed.  Cas.  No.  9144;  1  Story  (U.  S.)  373,  5  Fed.  Cas.  No. 

Malone  v.  Bell,  1  Pet.  Adm.  (U.  S.)  2907;    Mary  C.  Conery,  The,  9  Fed. 

139,   16   Fed.   Cas.   No.  8994;    Jones  222;  Worth  v.  Mumford,  1  Hilt.  (N. 

v.  Phoenix,  The,  1  Pet.  Adm.  (U.  S.)  Y.)  1. 
201,  13  Fed.  Cas.  No.  7489;   Herron 
Vol.  4  Elliott  Ev. — 41 


§  3317.]  LOG-BOOK.  642 

deduction  from  wages  on  account  of  time  lost  by  drunkenness  was 
justified  although  there  was  no  entry  of  the  occurrence  in  any  log-book, 
and  that  the  court  in  its  discretion  might  receive  other  evidence,  es- 
pecially as  the  vessel  was  a  small  coasting  vessel  such  as  seldom  keeps 
a  log,  and  the  seaman's  claim  was  clearly  unjust  and  without  merit.^^ 

"Marjory  Brown,   The,  134  Fed.  999. 


CHAPTER  CLXV. 


PRIZE    CASES. 


Sec.  Sec. 

3318.  Practice.  3335. 

3319.  Jurisdiction  in  prize  cases. 

3320.  Jurisdiction  and  relief.  3336. 

3321.  Capture   in   neutral   territory, 

effect.  3337. 

3322.  Neutral  protection — Proof  and 

effect.  3338. 

3323.  Presumptions  in  prize  case.  3339. 

3324.  Presumptions  as  to  blockade.       3340. 

3325.  Prima  facie  evidence. 

3326.  Burden  of  proof.  3341. 

3327.  Burden  on  claimant. 

3328.  Burden  on  claimant— General     3342. 

rule. 

3329.  Burden  on  claimant— Illustra-     3343. 

tions. 

3330.  Competency  of  witnesses.  3344. 

3331.  Condemnation — False  claim.         3345. 

3332.  Preparatory  hearing — Further 

proof.  3346. 

3333.  Examination    of    crew — Time 

and  manner.  3347. 

3334.  Further       proof- When       al- 

lowed. 


Further  proof — When  not  al- 
lowed. 

Further  proof  allowed  in  joint 
or  collusive  captures. 

Ship's  papers — Prima  facie 
proof  requisite. 

Ship's  papers — Production. 

Ship's  papers — Custody. 

Ship's  papers  —  Destruction 
and  spoliation. 

Ship's  papers  —  Absence, 
fraudulent  concealment,  etc. 

Ship's  papers — Enemy's  li- 
cense. 

Ship's  papers — Passport,  flags, 
etc. 

Joint  capture — Presumption. 

Joint  capture — Burden  of 
proof. 

Joint  capture — Sight  and  sig- 
nal distance. 

Joint  capture — Common  en- 
terprise. 


§  3318.  Prize  cases — Practice. — Prize  cases  form  an  important 
part  of  the  practice  in  admiralty  courts.  It  is  not  within  the  scope 
of  this  work,  however,  to  state  the  rules  of  practice  generally.  But 
an  understanding  of  the  nature  of  some  of  the  features  of  prize  cases 
will  aid  in  the  application  of  the  rules  of  proof  in  such  cases.  The 
court  of  prize  is  regarded  as  a  court  of  the  law  of  nations  and  takes 
neither  its  character  nor  its  rules  from  the  mere  local  municipal 
regulations  of  any  country.  In  such  causes  in  these  courts  the  entire 
proceedings  including  the  pleadings  and  the  proofs  in  a  general  way 
follow  the  civil  law,  with  such  changes  and  additions  as  the  rules  of 

643 


§§  3319,  3320.]  PRIZE  cases.  644 

practice  of  modern  civilized   nations,  together  with  the  rights  of 
belligerents  and  neutrals,  have  necessarily  added. ^ 

§  3319.  Jurisdiction  in  prize  cases. — The  rule  has  been  established 
that  the  jurisdiction  in  cases  of  capture  and  questions  of  prize  be- 
longs exclusively  to  the  courts  of  the  country  of  the  captors,  in  the 
absence  of  proof  of  violations  of  the  rules  of  neutrality.  This  rule, 
together  with  the  reasons  therefor,  was  stated  by  Justice  Livingstone 
in  an  early  case  as  follows :  *'N"ot  only  is  it  a  rule  well  established 
by  the  customary  and  conventional  law  of  nations,  but  it  is  founded 
in  good  sense,  and  is  the  only  one  which  is  salutary  and  safe  in 
practice.  It  secures  to  a  belligerent  the  independence  to  which  every 
sovereign  state  is  entitled,  and  which  would  be  somewhat  abridged, 
were  he  to  condescend  so  far  as  to  permit  those  who  bear  his  com- 
mission to  appear  before  the  tribunals  of  any  other  country,  and 
submit  to  their  interpretation  or  control,  the  orders  and  instructions 
under  which  they  have  acted.  It  insures  also,  not  only  to  the  belliger- 
ent himself,  but  to  the  world  at  large,  a  great  decree  of  caution  and 
responsibility,  on  the  part  of  the  agents  whom  he  appoints ;  who  not 
only  give  security  to  him  for  their  good  behavior,  but  will  sometimes 
be  checked  in  a  lawless  career,  by  the  consideration  that  their  con- 
duct is  to  be  investigated  by  the  courts  of  their  own  nation,  and 
under  the  very  eye  of  the  sovereign,  under  whose  sanction  they  are 
committing  hostilities.  In  this  way,  also,  is  a  foundation  laid  for  a 
claim  by  other  nations,  of  an  indemnity  against  the  belligerent, 
for  the  injuries  which  their  subjects  may  sustain,  by  the  operation 
of  any  unjust  or  improper  rules,  which  he  may  think  proper  to  pre- 
scribe for  those  who  act  under  his  authority."^ 

§  3320.  Jurisdiction  and  relief. — Wlien  a  court  of  admiralty  has 
assumed  legitimate  jurisdiction  over  property  of  prize  its  authority 
will  extend  and  will  be  exerted  over  all  the  incidents.  Thus,  in  such 
a  case  the  court,  if  the  evidence  justifies,  may  decree  a  restoration  of 

1  Adeline,  The,  9  Cranch    (U.  S.)  298;   L'Invincible,  1  Wheat   (U.  S.) 

244,     284;      Thirty     Hogsheads     of  238.     See,  Bee,  The,  1  Ware  (U.  S.) 

Sugar  v.   Boyle,   9   Crancn    (U.   S.)  332,  336,  3  Fed.  Cas.  No.  1219;  Wil- 

191;    Manila  Prize  Cases,  188  U.  S.  liam.  The,  1  Pet.  Adm.   (U.  S.)   12; 

254,  23  Sup.  Ct.  415.     For  valuable  Santissima  Trinidad,  The,  7  Wheat, 

notes  on  the  practice  in  prize  causes  (U.  S.)    283;    South  Carolina,  The, 

see  Appendix  2  Wheat  1.  Bee  (U.  S.)  422. 

=  Estrella,  The,   4   Wheat    (U.   S.) 


645  CAPTURE    IN    NEUTEAL   TERRITORY,  [§    3331. 

a  whole  or  a  part  of  the  property;  it  may  not  only  l)ur(len  tlie  prop- 
erty with  salvage  but  may  determine  whether  sucli  salvage  be  held 
a  portion  of  the  property  itself  or  a  mere  lien,  or  a  condition  annexed 
to  its  restitution.^  Before  an  order  of  restitution  can  be  made  for 
prize  property  the  claimant  or  the  asserted  owner  must  establish 
two  propositions:  (1)  His  proprietary  interest  in  the  captured 
goods;  (2)  that  he  is  a  neutral  merchant  and  by  reason  of  liis  domi- 
cile and  national  character  is  entitled  to  a  restitution  of  the  prop- 
erty.'* Wliere  it  was  made  to  appear  that  the  property  captured  was  tlie 
produce  of  land  in  an  enemy's  country,  it  was  held  to  be  prize  prop- 
erty regardless  either  of  the  national  character  of  the  owner  or  his 
place  of  residence.^ 

§  3321.  Capture  in  neutral  territory,  effect. — A  capture  in  neu- 
tral waters  is  not  necessarily  void.  As  between  the  belligerent  nations 
such  captures  are  regarded  as  rightful.  It  is  only  considered  void 
as  to  the  neutral  sovereign  and  it  is  only  by  him  that  the  legal 
validity  can  be  raised  or  questioned.  It  does  not  rest  with  the  enemy 
to  claim  the  illegality  of  the  capture;  he  has  no  rights  whatever  in 
the  premises.  If  the  neutral  sovereign  fails  or  refuses  to  interfere 
by  way  of  protection  the  property  may  be  condemned  to  the  captors.^ 
This  principle  was  recognized  in  a  more  recent  case  growing  out  of 
a  capture  during  the  civil  war  in  Mexican  waters,  and  the  rule 
stated  thus:  "The  weight  of  evidence,  we  think,  put  the  vessel,  at 
the  time  of  capture,  in  Mexican  waters;  but  if  the  ship  or  cargo 
was  enemy  property,  or  either  was  otherwise  liable  to  condemnation, 
that  circumstance,  by  itself,  would  not  avail  the  claimants  in  a 
prize  court.  It  might  constitute  a  ground  of  claim  by  the  neutral 
power,  whose  territory  had  suffered  trespass,  for  apology  or  indem- 

'  Adeline,  The,  9   Cranch    (U.  S.)  mona,   The,   1   Dods.   25;    Herkimer, 

244;  Anna  Maria,  The,  2  Wheat.  (U.  The,  Stew.  N.  Sc.  128,  2  Hall  L.  J. 

S.)    327;    Del  Col  v.  Arnold,  3  Ball.  133;  Home  v.  Camden,  2  H.  Bl.  533; 

(U.   S.)    333;    Two   Friends,   The,   1  Smart    v.    Wolff,    3    Term.    R.    323; 

C.  Rob.  271;   Copenhagen,  The,  1  C.  Duckworth  v.   Tucker,   2  Taunt.  7; 

Rob.  289;  Bingham  v.  Cabot,  3  Dall.  Le  Caux  v.  Eden,  2  Doug.  594;  Lin- 

(U.  S.)  19;  United  States  v.  Peters,  do  v.  Rodney,  2  Doug.  613n. 

3  Dall.   (U.  S.)   121;   Talbot  v.  Jan-  *  Dos    Hermanos,    The,    2    Wheat, 

sen,  3  Dall.  (U.  S.)  133;  Betsy,  The,  (U.  S.)  76. 

1  C.  Rob.  332;   Princessa,  The,  2  C.  ■*  Thirty   Hogsheads  of   Sugar   v. 

Rob.  31;   St.  Juan  Baptista,  The,  5  Boyle,  9  Cranch  (U.  S.)  191. 

Rob.   33;    Fire  Damer,   Die,   5  Rob.  "  Anne,  The,  3  Wheat.  (U.S.)  435. 
357;    Louis,    The,    5    Rob.    146;    Po- 


§§  3322,  3323.]  prize  cases.  646 

nity.  But  neither  an  enemy  nor  a  neutral,  acting  the  part  of  an 
enemy,  can  demand  restitution  of  captured  property  on  the  sole 
ground  of  capture  in  neutral  waters."^ 

§  3322.  Neutral  protection — Proof  and  effect. — The  defense  of 
neutrality  on  the  part  of  the  captured  or  the  claimant  must  be  con- 
sistent. In  order  to  sustain  it  the  proof  must  show,  in  addition  to  neu- 
trality of  the  owner  or  claimant,  that  the  capture  was  made  in 
neutral  waters  and  without  resistence.  A  ship  in  neutral  waters  is 
bound  to  abstain  from  all  hostilities;  and  failing  to  do  this  she  for- 
feits protection  from  the  neutral  sovereign.  This  principle  is  more 
fully  stated  as  follows :  "It  is  a  fact,  that  the  captured  ship  first 
commenced  hostilities  against  the  privateer.  This  is  admitted  on  all 
sides;  and  it  is  no  excuse  to  assert  that  it  was  done  under  a  mistake 
of  the  national  character  of  the  privateer  even  if  this  were  entirely 
made  out  in  the  evidence.  While  the  ship  was  lying  in  neutral  waters, 
she  was  bound  to  abstain  from  all  hostilities,  except  in  self-defense. 
The  privateer  had  an  equal  title  with  herself  to  the  neutral  protec- 
tion, and  was  in  no  default,  in  approaching  the  coast,  without  show- 
ing her  national  character.  It  was  a  violation  of  that  neutrality 
which  the  captured  ship  was  bound  to  observe,  to  commence  hostilities, 
for  any  purpose,  in  these  waters;  for  no  vessel  coming  thither  was 
bound  to  submit  to  search,  or  to  account  to  her  for  her  conduct  or 
character.  Wlien,  therefore,  she  commenced  hostilities,  she  forfeited 
the  neutral  protection,  and  the  capture  was  no  injury  for  which  any 
redress  could  be  rightfully  sought  from  the  neutral  sovereign."^  It 
seems  to  be  the  settled  rule  of  prize  courts  that  the  burden  of  proof 
of  a  neutral  interest  is  upon  the  claimants.  In  speaking  of  tliis  rule 
in  a  case  where  time  had  been  given  for  the  proof  to  establish  the 
neutrality.  Justice  Story  said  :  "But  if,  in  the  event,  after  full  time 
and  opportunity  to  adduce  proofs,  the  claim  is  still  left  in  uncer- 
tainty and  the  neutrality  of  the  property  is  not  established,  beyond 
reasonable  doubt,  it  is  the  invariable  rule  of  prize  courts  to  reject  the 
claim  and  decree  condemnation  of  the  property."" 

§  3323.  Presumptions  in  prize  cases. — Certain  presumptions  arise 
in  prize  courts  which  legally  affect  the  parties,  and  are  considered  as 

'Sir  William  Peel,  The.  5  Wall.  'Amiable  Isabella,  The,  6  Wheat. 
(U.  S.)  517.  (U.  S.)  177. 

»Anne,  The,  3  Wheat.  (U.  S.)  435. 


647  PRESUMPTIONS.  [§  3323. 

of  general  application.  Thus,  where  there  is  a  total  want  of  evi- 
dence to  establish  the  proprietary  interest,  the  property  is  presumed 
to  belong  to  an  enemy.  ^°  So,  possession  is  presumptive  evidence  of 
property.^^  And  goods  found  in  an  enemy's  ship  are  presumed  to 
belong  to  the  enemy  in  the  absence  of  documentary  proof  accompany- 
ing them,  giving  them  a  distinct  neutral  character.^-  So,  a  merchant 
is  presumed  to  be  acting  for  himself  and  upon  his  own  account.  ^^ 
So,  where  it  appears  that  a  ship  has  been  captured  and  carried  into 
an  enemy's  port  and  is  thereafter  found  in  the  possession  of  a  neu- 
tral, the  presumption  is  that  there  has  been  regular  condemnation, 
and  proof  of  the  contrary  rests  upon  the  party  claiming  the  prop- 
erty against  the  neutral  officer.^'*  So,  the  master  and  crew  of  a  ship 
are  presumed  to  possess  the  national  character  of  the  ship  to  which 
they  belong  during  the  time  of  their  employment. ^^  And  a  neutral 
consul,  who  has  become  a  resident  and  a  trader  in  a  belligerent 
country,  is,  as  to  his  mercantile  character,  presumed  a  belligerent  of 
that  country.^®  And  a  like  presumption  applies  to  the  subject  of 
one  belligerent  country  who  resides  in  the  country  of  the  enemy  and 
carries  on  trade  there.^''  Ships  are  conclusively  presumed  to  belong 
to  the  country  under  whose  flag  and  pass  they  sail.^®  And  where  it 
was  clear  that  a  vessel  was  the  property  of  an  enemy  and  liable  to 
confiscation,  the  presumption  is  that  the  cargo  was  the  property  and 
also  subject  to  condemnation.^^  So,  a  vessel  is  presumed  to  belong 
to  the  country  where  the  owner  resides.^"  So,  impliments  and  muni- 
tions of  war  which  are  calculated  for  immediate  use  for  warlike  pur- 
poses when  in  transit  to  the  enemy's  country  are  presumed  to  be 

"Magnus,  The,  1  C.  Rob.  31.  '"  Citto,  The,  3  C.  Rob.  38;  McCon- 

"  Resolution,  The,  Ball.  (U.  S.)  19.  nell  v.  Hector,  3  Bos.  &  P.  113. 

'=  Flying    Fish,    The,    2    Gall.    (U.  '^  Vigilantia,    The,    1    C.    Rob.    1; 

S.)   373,  9  Fed.  Cas.  No.  4892;    San  Vrow    Anna    Catharina,    5    C.    Rob. 

Jose  Indiano,  The,  2  Gall.    (U.   S.)  161;    Success,    1    Dods.    131;    Julia, 

268,  21  Fed.  Cas.  No.  12322;  London  The,  2  Sprague  (U.  S.)  164,  14  Fed. 

Packet,  The,  1  Mason  (U.  S.)  14,  15  Cas.  No.  7576;  London  Packet,  The, 

Fed.  Cas.  No.  8474.  5  Wheat.  (U.  S.)   132;  Sally  Magee, 

« Jonge  Pieter,  The,  4  C.  Rob.  79.  The,  3  Wall.  (U.  S.)  451;  Carlos  F. 

"Countess  of  Lauderdale,  The,  4  Roses,  The,  177  U.  S.  655,   20  Sup. 

C.  Rob.  283.  Ct.  803;  Appendix,  2  Wheat.  (U.  S.) 

^^Embden,    The,    1    C.    Rob.    16;  24;  Benito  Estenger,  The,  176  U.  S. 

Endraught,  The,  1  C.  Rob.  19;  Ber-  568,  20  Sup.   Ct.  458;    Flying  Fish, 

non.  The,  1  C.  Rob.  102;   Frederick,  The,  2  Gall.  (U.  S.)  373,  9  Fed.  Cas. 

The,  5  C.  Rob.  8;  Ann,  1  Dods.  221.  No.  4892. 

"Indian  Chief,  The,  3  C.  Rob.  22;  -» San  Jose   Indiano.   The,    2   Gall. 

Josephine,  The,  4  C.  Rob.  25.  (U.  S.)  268,  21  Fed.  C  as.  No.  12322. 


§  3324.]  PRIZE  CASES.  648 

contraband  of  war."^  In  the  absence  of  the  ship's  papers  the  pre- 
sumption is  that  the  destination  of  the  vessel  was  to  some  port  of 
the  country  where  the  consignee  lived. ^^ 

§  3324.  Presumption  as  to  blockade. — It  is  one  of  the  rules  of 
recognized  warfare  that  one  of  the  belligerents  has  the  right  to 
blockade  the  ports  of  another.  From  this  it  follows  as  a  corollary 
that  neutrals  are  bound  to  respect  such  a  blockade  in  order  to  claim 
their  privilege  as  neutrals.  A  state  of  war  must  actually  exist  and 
the  neutral  must  have  notice  or  knowledge  of  the  intention  of  one 
belligerent  to  blockade  the  ports  of  the  other  in  order  to  justify  the 
capture  of  the  neutral  vessels,  and  the  neutrals  may  call  in  question 
the  existence  of  the  blockade  and  challenge  the  authority  of  the 
party  who  has  established  it.  Such  neutral  vessels  are  entitled  to 
reasonable  time  in  which  to  leave  the  port  after  notice  or  knowledge 
of  the  blockade.  Neutral  vessels  in  a  blockaded  port  are  presumed  to 
have  notice  of  the  blockade  as  soon  as  it  commences.^^  Where  it  was 
shown  that  a  vessel  delaj^ed  sailing  after  being  completely  laden,  and 
that  after  she  sailed  she  changed  course  in  order  to  escape  a  ship  of 
war  cruising  for  blockade  runners,  it  was  held  that  from  these  facts 
the  intent  to  run  the  blockade  would  be  presumed.^*  The  rule  is 
that  a  blockade  once  established  and  notice  duly  given  will  be  pre- 
sumed to  continue  until  notice  of  discontinuance.^^  So,  intention  to 
break  the  blockade  may  be  presumed  from  the  position  of  the  ship 
when  captured;  and  concealment  of  the  truth  is  held  to  be  prima 
facie  evidence  of  such  fraudulent  intention.^"  Where  a  prohibited 
cargo  was  taken  at  a  port  with  which  commerce  had  been  prohibited, 
and  in  the  absence  of  the  ship's  papers,  it  will  be  presumed  that  the 
cargo  was  laden  for  an  unlawful  destination.^^ 

^ipeterhoff,  The,  Blatchf.  Pr.  Cas.  -'' Baigory,   The,   2  Wall.    (U.   S.) 

463,  19  Fed.  Cas.  No.  11024.  474. 

^2  United  States  v.  Paul  Shearman,  ="  Cheshire,  The,  3   Wall.    (U.  S.) 

Pet.    (C.    C.)    98,    27   Fed.    Cas.   No.  231;    James  Cook,  The,  Edw.  Adm. 

16012.  261;     Sunbeam,    The,    Blatchf.    Pr. 

"^  Prize   Cases,   The,   2   Black    (U.  Cas.   316,   23   Fed.   Cas.   No.   13613; 

S.)  635.  Adula,  The,  89  Fed.  351. 

=*Baigory,    The,    2   Wall.    (U.    S.)  =^  United  States  v.  Paul  Shearman, 

474;  Cornelius,  The,  3  Wall.  (U.  S.)  Pet.    (C.   C.)    98,   27   Fed.   Cas.   No. 

214;  Aurora,  The,  8  Cranch  (U.  S.)  16012. 
203;    Jenny,   The,   5  Wall.    (U.   S.) 
183. 


649  PRIMA    FACIE    EVIDENCE — BURDEN.       [§§    3325,    332G. 

§  3325.  Prima  facie  evidence. — The  term  prize  goods  or  property 
is  applied  to  sucli  goods  as  are  taken  on  the  high  seas  from  an  enemy 
in  time  of  war.  When  any  property  is  thus  taken  it  is  the  duty  of 
the  captors  to  proceed  against  the  goods  as  belligerent  property  in  a 
prize  court.  No  other  court  has  jurisdiction;  nor  can  the  questions 
presented  on  a  capture  made  in  a  time  of  war  be  properly  or  effectually 
examined  except  in  a  prize  court.  The  general  rule  is  that  property 
found  in  possession  of  the  enemy  affords  prima  facie  proof  that  it 
belongs  to  him.  This  rule  is  not  affected  by  the  fact  that  such  prop- 
erty may  have  previously  possessed  a  neutral  or  friendly  character, 
but  it  is  held  that  such  neutral  or  friendly  owner  is  deprived  of  his 
right  to  claim  the  property  if  it  has  been  changed  by  a  sentence  of 
condemnation,  or  by  such  possession  as  nations  recognize  as  firm  and 
effectual.^^ 

§  3326.  Burden  of  proof. — The  rule  that  the  sea  is  open  to  all  na- 
tions does  not  necessarily  apply  during  a  state  of  war  between  two 
nations.  In  such  times  the  ships  of  either  nations  are  subject  to 
capture  as  lawful  prize  by  the  ships  of  the  other.  But  every  capture 
must  be  made  upon  just  grounds;  hence,  while  neutral  ships,  or  ves- 
sels of  nations  not  enemies  in  time  of  war  may  be  brought  to  and 
examined,  they  are  not  subject  to  capture  unless  shown  to  be  aid- 
ing the  enemy  or  otherwise  violating  the  laws  of  neutrality.  It  is, 
therefore,  evident  that  every  capture  is  at  the  peril  of  the  vessel 
making  it.  From  these  principles  is  deduced  the  rule  that  the  burden 
of  proof  is  upon  the  captor  to  show  that  the  captured  vessel  was  a 
lawful  prize;  the  claimants  are  not  required  to  establish  their  inno- 
cence or  their  neutrality,  in  the  first  instance.  To  entitle  the  cap- 
tors to  a  judgment  of  condemnation  they  must  establisli  affirmatively : 
(1)  Just  grounds  for  the  capture;  if  this  amounts  to  probable  cause, 
it  is  sufficient;  (2)  the  vessel  must  be  shown  to  be  the  property  of 
the  enemy.-"  So,  a  party  that  founds  a  claim  on  the  rights  of  war 
has  the  burden  of  proving  that  peace  was  broken  and  that  a  state  of 
war  actually  existed.^" 

28 Adeline,  The,  9  Cranch    (U.  S.)  son    232,    27    Fed.    Cas.    No.    15968; 

244,  285.  Peterhoff,  The,  Blatchf.  Pr.  Cas.  463. 

^Resolution,  The,  2  Ball.   (U.  S.)  19  Fed.  Cas.  No.  11024. 

19;    Thomas  Watson,   The,   Blatchf.  ^"Resolution,    The,    2    Ball.     (U. 

Pr.  Cas.  120,  23  Fed.  Cas.  No.  13933;  S.)  19. 
United  States  v.  Open  Boat,  5  Ma- 


§§  3327,  3328.]  prize  cases.  650 

§  3327.  Burden  on  claimant. — There  may  be  cases  where  certain 
circumstances  exist  and  certain  presumptions  arise  which  will  cast 
the  burden  of  proof  upon  the  claimant.  Thus,  if  the  ship's  papers 
show  the  captured  vessel  to  be  the  property  of  the  enemy,  a  sufficient 
prima  facie  case  is  thus  made  to  cast  upon  the  claimants  the  burden 
of  proving  ownership  of  the  property.^^  The  rule  is  that  in  prize 
cases  the  burden  of  proving  neutral  ownership  of  a  vessel  is  on  the 
claimant.^^  So,  where  a  cargo  is  found  in  the  ship  of  an  enemy  the 
burden  of  relieving  such  cargo  from  a  judgment  of  condemnation, 
and  of  proving  ownership  rests  upon  the  claimants.^^  And  the  burden 
of  proof  to  repel  the  presumption  of  an  enemy's  license  is  on  the 
claimant.^* 

§  3328.  Burden  on  claimant — General  rule. — The  general  rule 
that  prevails  in  the  matter  of  burden  of  proof  in  prize  cases  is  that 
where  the  vessel  or  the  property  is  captured  or  taken  in  delicto,  the 
burden  of  proof  is  upon  the  vessel  or  the  claimant  to  establish  its 
innocence  or  neutrality  and  avoid  an  order  of  condemnation.^^  The 
general  rule  as  to  the  burden  of  proof  in  prize  cases  is  thus  stated: 
"The  burden  of  proof  in  prize  proceedings  is  on  the  seized  vessel. 
The  authorities  concur  in  this  general  statement,  but  the  principle 
is  not  technical  and  is  not  to  be  pushed  beyond  its  proper  natural 
intent.  Seized  vessels  always  appear  before  the  court  under  the  taint 
of  suspicion ;  that  taint  it  is  incumbent  upon  them  to  remove,  as  it  is 
in  their  power  alone  to  do  so.  What  the  court  looks  for  is  the  fact. 
If  it  appear  that  the  vessel  was  innocently  pursuing  an  honest  and 
legal  voyage,  whether  that  appear  by  papers  or  otherwise,  then  the 
vessel  should  be  released.  No  particular  papers,  no  specified  char- 
acter of  evidence  is  marked  out  and  defined  as  indispensable  to  attain 
this  end.  A  case  is  easily  supposable  in  which  a  merchant  vessel  has 
lost  its  papers  by  an  accident,  or  by  theft,  or  by  robbery  committed 
by  a  pirate  or  privateer,  or  through  suppression  by  the  captor,  and  it 
would  not  be  admitted — the  fact  of  their  non-production  being  ex- 
plained,  and   the   vessel's   honest   character  being   shown — that  be- 

=^  Resolution,     The,     2     Ball.     (U.  177  U.  S.  655,  20  Sup.  Ct.  803;  Sally 

S.)  19.  Magee,  The,  3  Wall.  (U.  S.)  451. 

==  Benito  Estenger,  The,  176  U.  S.  "^  Langdon  Cheves,  The,  4  Wheat. 

568,  20  Sup.  Ct.  489.  (U.  S.)    103. 

"  London   Packet,    The,    5   Wheat.  =^  United  States  v.  Paul  Shearman, 

(U.  S.)   132;   Carlos  F.  Roses,  The,  Pet.    (C.   C.)    98,    27   Fed.    Cas.    No. 

16012. 


651  BUEDEX    ON    CLAIMANT.  [§    3329. 

cause  some  particular  document  was  not  on  board  she  therefore 
should  be  condemned  and  confiscated.  The  onus  proband!  is  on  the 
captured  vessel ;  which  means  no  more  than  that  she  must  explain 
away  suspicious  circumstances."^^ 

§  3329.  Burden  on  claimant — Illustrations. — Where  by  statute  it 
was  made  illegal  to  import  goods  from  a  British  port  except  in  neu- 
tral vessels,  it  was  held  that  when  the  prohibited  importation  was 
shown  the  burden  of  proof  was  then  on  the  claimant  to  establish  the 
neutral  character  of  the  vessel.^^  The  burden  is  on  the  claimant  to 
overcome  the  prima  facie  case;  and  where  he  fails  to  do  this  by  the 
production  of  papers  and  other  evidence  which  must  be  in  his  pos- 
session or  under  his  control,  the  order  of  condemnation  will  follow.^* 
Where  a  capture  is  made  on  account  of  the  violation  of  the  embargo 
laws,  the  burden  is  upon  the  captured  vessel  to  show  the  necessity 
sufficient  to  excuse  such  a  violation,  and  tlie  evidence  for  this  purpose 
must  be  clear  and  positive.^**  It  seems  to  be  the  rule  of  prize  courts 
that  the  burden  of  proof  of  a  neutral  interest  rests  on  the  claimant; 
but  this'  is  subject  to  the  rule  that  the  evidence  to  acquit  or  condemn 
shall,  in  the  first  instance,  come  from  the  sliip's  papers  and  the  crew.'*'' 
Where  a  belligerent  capture  has  been  made  and  the  captured  vessel 
seeks  the  aid  of  a  neutral  court  on  account  of  the  supposed  violation 
of  neutrality,  the  burden  rests  upon  the  claimant  to  prove  the  sup- 
posed violation  of  neutrality.'*^ 

^Hooper  v.  United  States,  22  Ct.  The,  Blatchf.  Pr.  Cas.  123,  21  Fed. 

CI.    (U.    S.)    408,    454;    Johnson    v.  Cas.   No.   12340;    Ten   Hogsheads  of 

Thirteen  Bales  &c.,  2  Paine  (U.  S.)  Rum,   1   Gall.    (U.   S.)    187,   23   Fed. 

639,  6  Hall  L.  J.  97,  Van  Ness  45,  13  Cas.  No.  13830;    Short  Staple,   The, 

Fed.  Cas.  No.  7415;   Ten  Hogsheads  12813;    Boxes   of    Opium   v.    United 

of  Rum,  1  Gall.  (U.  S.)  187,  23  Fed.  States,  23  Fed.  367. 

Cas.  No.  13830;  Short  Staple,  The,  1  1  Gall.  (U.  S.)  104,  22  Fed.  Cas.  No. 

Gall.   (U.  S.)   104,  22  Fed.  Cas.  No.  ="  James  Wells,  The,  7  Cranch  (U. 

12813;    Boxes    of   Opium   v.    United  S.)  21. 

States,  23  Fed.  367.  *"  Amiable  Isabella,  The,  6  Wheat, 

"United    States    v.    Hayward,    2  (U.  S.)    1;    Rover,  The,  2  Gall.    (U. 

Gall.    (U.  S.)    485,  26  Fed.  Cas.  No.  S.)    240,    20    Fed.    Cas.    No.    12091; 

15336.  United    States  v.   Hayward,    2   Gall. 

^Luminary,    The,    8    Wheat.     (U.  (U.  S.)  485,  26  Fed.  Cas.  No.  15336. 

S.)   407;  John  Griffin,  The,  15  Wall.  "La  Amistad  de  Rues,  5  Wheat. 

(U.   S.)    29;    Slavers,   The,    2   Wall.  (U.  S.)  385. 
(U.    S.)    375;    Sarah   and    Caroline, 


§§  3330,  3331.]  PRIZE  cases.  652 

§  3330.  Competency  of  witnesses. — It  appears  to  be  the  practice 
that  on  the  original  hearing  tlie  ship's  papers  and  the  preparatory 
examinations  of  the  captured  crew  are  the  only  evidence  admissible. 
But  where  an  order  has  been  made  for  further  proof  the  question 
of  the  competency  of  the  captors  as  witnesses  has  arisen.  Where  the 
circumstances  of  the  capture  become  material  the  facts  are  as  much 
within  the  knowledge  of  the  captors  as  the  captured  and  the  objec- 
tion of  interest  would  apply  to  one  the  same  as  to  the  other.  Plencc, 
the  rule  was  early  established  in  admiralty  that  no  person  was  ren- 
dered incompetent  as  a  witness  on  the  ground  of  interest.  These 
courts  established  and  recognized  the  admissibility  of  such  testimony 
and  received  it  subject  to  the  usual  tests  as  to  its  credibility.'*^  In 
general  an  alien  enemy  is  not  disqualified  as  a  witness.'*^  In  ordinary 
cases  the  prize  crew,  whether  national,  neutral  or  hostile,  are  com- 
petent witnesses.**  Where  further  proof  has  been  ordered  the  affi- 
davits of  the  captors  are  evidence  of  facts  within  their  own  knowl- 
edge j*^  and  the  attestations  of  the  claimant  and  his  clerks,  together 
with  the  correspondence  between  him  and  his  agents,  are  admissible.*^ 
But  it  seems  to  be  the  rule  that  where  a  joint  capture  is  set  up  the 
testimony  of  witnesses  of  the  ship  claiming  as  joint  captors  is  not 
sufficient  of  itself  to  establish  the  claim. *^ 

§  3331.  Condemnation — False  claim. — The  utmost  good  faith  is 
required  in  the  condemnation  of  prize  vessels  or  property.  Prize 
courts  will  not  aid  persons  who  themselves  have  been  guilty  of  frauds. 
This  principle  was  stated  by  Justice  Story  thus:  "There  is  another 
rule,  too,  founded  in  the  most  salutary  and  benign  principles  of  jus- 
tice, that  the  assertion  of  a  false  claim,  in  whole  or  in  part,  by  an 
agent  of,  or  in  connivance  with,  the  real  owners,  is  a  substantive  cause 
of  forfeiture,  leading  to  condemnation  of  property."*^ 

^Anne,    The,    3    Wheat.     (U.    S.)  Gall.    (U.  S.)    401.  21  Fed.  Cas.  No. 

434;   Boston,  The,  1  Sumn.   (U.  S.)  12258. 

328,  3   Fed.   Cas.  No.   1673,   11  Am.  ^"Adelaide,  The,  3  C.  Rob.  281. 

Jur.  21.  ^'Boston,    The,    1    Sumn.    (U.    S.) 

*^  Falcon,  The,  6  C.  Rob.  194.  328,  3  Fed.   Cas.   No.    1673,   11  Am. 

"Henrick   and    Maria,    The,   4    C.  Jur.  21;  La  Belle  Coquette,  1  Dods. 

Rob.  43.  18;    John,   1    Dods.    363;    Arthur,    1 

*^  Maria,  The,  1  C.  Rob.  340;  Reso-  Dods.  423;  Galen.  2  Dods.  19. 

lution,  6  C.  Rob.  13;   Sally,  The,  1  *«  Amiable  Isabella,  The,  6  Wheat. 

(U.  S.)  178. 


653  PREPARATOIIY    ITEARIXG FURTHER    PROOF.  [§    3332. 

§  3332.  Preparatory  hearing — Further  proof. — The  rule  is  that 
"it  is  the  duty  of  the  captors,  as  soon  as  practicable,  to  bring  the 
ship's  papers  into  the  registry  of  the  district  court,  and  to  have  the 
examinations  of  the  principal  officers  and  seamen  of  the  captured 
ship  taken  before  the  district  judge,  or  commissioners  appointed  by 
him,  upon  the  standing  interrogatories.  It  is  exclusively  upon  these 
papers  and  the  examinations,  taken  in  praeparatorio,  that  the  cause 
is  to  be  heard  before  the  district  court.  If,  from  tlie  whole  evidence, 
the  property  clearly  appear  to  be  hostile  or  neutral,  condemnation 
or  acquittal  immediately  follows.  If,  on  the  other  hand,  the  prop- 
erty appears  doubtful,  or  the  ease  be  clouded  with  suspicions  or  in- 
consistencies, it  then  becomes  a  case  of  further  proof,  which  the 
court  will  direct  or  deny,  according  to  the  rules  wiiich  govern  its 
legal  discretion  on  this  subject.  Further  proof  is  not  a  matter  of 
course;  it  is  granted  in  cases  of  honest  mistake  or  ignorance,  or  to 
clear  away  any  doubts  or  defects  consistent  with  good  faith.  But 
if  the  parties  have  been  guilty  of  gross  fraud  or  misconduct,  or  ille- 
gality, further  proof  is  not  allowed;  and  under  such  circumstances, 
the  parties  are  visited  with  all  the  fatal  consequences  of  an  original 
hostile  character."  The  reason  for  requiring  prompt  action  on  the 
part  of  the  captors  is  said  to  be  that  "the  evidence  to  acquit  or  con- 
demn must,  in  the  first  instance,  come  from  the  papers  and  crew  of 
the  captured  ship."*^  The  court  is  not  concluded  by  this  original 
evidence;  it  may  order  further  proof  when  a  doubt  arises  on  any 

*^Dos   Hermanos,    The,    2    Wheat.  Fed.  Cas.  No.  8406;  London  Packet, 

(U.  S.)   76;  Adeline,  The,  9  Cranch  The,    1   Mason    (U.   S.)    14,   15   Fed. 

(U.     S.)     244,     285;     Manila    Prize  Cas.      No.      8474;      Cheshire,      The, 

Cases,    188   U.    S.    254,    23    Sup.    Ct.  Blatchf.    Pr.    Cas.   151,    5    Fed.   Cas. 

415;    Ann   Green,   The,    1    Gall.    (U.  No.    2655;    Newfoundland,    The,    89 

S.)  274,  1  Fed.  Cas.  No.  414;  Olinde-  Fed.   99;    Falcon,   The,   Blatchf.   Pr. 

Rodrigues,  The,  89  Fed.  105;    Both-  Cas.  52,  8  Fed.  Cas.  No.  4616;  Live- 

nea.  The,  2  Gall.   (U.  S.)   78,  3  Fed.  ly,  The,  1  Gall.  (U.  S.)  315,  15  Fed. 

Cas.  No.  1686;  Arabella,  The,  2  Gall.  Cas.  No.  8403;   Appendix,  2  Wheat. 

(U.   S.)    368,   1  Fed.   Cas.   No.   501;  (U.  S.)  498;  Alliance,  The,  Blatchf. 

Amiable  Isabella,  The,  6  Wheat.  (U.  Pr.  Cas.   646,  1   Fed.  Cas.  No.   246; 

S.)  1,  77;   Sally  Magee,  The,  3  Wall.  Vigilantia,   The,    1   C.   Rob.  1;    Hul- 

(U.  S.)  451;  Sir  William  Peel,  The,  dah,  The,  3  C.  Rob.   235;    Madonna 

5   Wall.    (U.    S.)    517;    Adula,   The,  del  Burso,  The,  4  C.  Rob.   169;    St. 

176  U.  S.  361,  89  Fed.  351,  20  Sup.  Juan   Baptista,   The,   5   C.   Rob.   33; 

Ct.  432;    Gray  Jacket,  The,  5  Wall.  Wilhelmsberg,  The,  5  C.  Rob.  143; 

(U.    S.)    342,    368;    Pizarro,    The,    2  Elsebe,   The,  5   C.  Rob.    173;    Bene- 

Wheat      (U.     S.)      227;      Liverpool  diet    Adm.,     §     512a;     Story     Prize 

Packet,  The,  1  Gall.   (U.  S.)   513,  15  Courts  17. 


§§  3333,  3334.]  prize  cases.  654 

question.     Where  a  suspicion  arises  the  court  will  generally  direct 
further  proof .^*' 

§  3333.  Examination  of  crew — Time  and  manner. — The  examina- 
tion should  take  place  as  soon  as  possible  after  the  arrival  of  the 
vessels,  in  order  to  guard  as  much  as  possible  against  fraud,  and 
the  witnesses  are  not  allowed  to  have  communication  with  or  to  be 
instructed  by  counsel.  The  captors  should  introduce  all  witnesses 
in  succession  and  they  will  not  be  permitted,  without  special  order, 
to  examine  witnesses  at  a  subsequent  time.^^  The  examination  is 
limited  to  the  persons  on  board  at  the  time  of  the  capture,  unless 
the  court  grants  special  permission  for  the  examination  of  others.^^ 
Courts  will  hesitate  to  condemn  a  vessel  and  cargo  where  the  captors 
have  failed,  without  any  excuse,  to  send  in  the  master  as  a  witness.^  ^ 
For  like  reasons  equal  strictness  is  required  of  the  claimants,  and  if 
they  keep  back  any  of  the  captured  crew,  for  two  or  three  days  after 
the  vessel  comes  into  port,  the  commissioners  will  be  justified  in  not 
examining  them.^* 

§  3334.  Further  proof — ^When  allowed. — It  is  evident  that  in  many 
cases  the  refusal  to  allow  further  proof  would  amount  to  a  denial  of 
justice.  The  application  of  the  rules  of  equity  in  certain  classes 
of  prize  cases  admits  the  order  for  further  proof.  The  general  rule 
on  this  subject  has  been  stated  as  follows :  "The  most  ordinary  cases 
of  further  proof  are  where  the  cause  appears  doubtful  upon  the 
original  papers,  and  the  answers  to  the  standing  interrogatories;  and 
in  such  cases,  if  the  parties  have  conducted  themselves  with  good 
faith,  and  the  error  or  deficiency  may  be  referred  to  honest  ignorance 
or  mistake,  the  court  will  indulge  them  time  to  supply  the  defects, 
by  the  introduction  of  new  evidence.  But  further  proof  is,  in  no 
case,  a  matter  of  right,  and  rests  to  the  sound  discretion  of  the  court. 
Further  proof  is,  in  all  cases,  necessary,  where  the  master  does  not 
swear  to,  or  give  any  account  of  the  property."^^     Further  proof  in 

^°  Romeo,    The,    6    C.    Rob.    351;  ^^  Julia,    The,    2   Sprague    (U.    S.) 

Sarah,  The,  3  C.  Rob.  330.  164.  14  Fed.  Cas.  No.  7576. 

"Speculation,  The,  2  C.  Rob.  293.  ^*  Anna.  The,  1  C.  Rob.  331;   Wil- 

"  Eliza  and  Katy,  The,  6  C.  Rob.  liam  and  Mary,  The,  4  C.  Rob.  381. 

185;   Henrick  and  Maria,  The,  4  C.  =•=>  Appendix,  1  Wheat.  504. 
Rob.  43. 


655  FURTHER    PROOF.  [§    3335. 

prize  cases  is  usually  admitted  by  written  evidence  and  depositions 
only  and  not  by  way  of  oral  proof.^^ 

§  3335.  Further  proof — When  not  allowed. — It  must  appear  tliat 
the  application  for  further  proof  is  made  in  good  faith.  Such  fur- 
ther proof  will  not  be  allowed  when  there  are  appearances  of  collu- 
sion between  the  captors  and  the  captured  vessel.  And  as  further 
proof  cannot  extend  beyond  the  explanation  of  the  facts  of  the  cap- 
ture it  will  not  be  allowed  where  the  obvious  purpose  is  to  substitute 
evidence  which  might  be  procured  after  opportunity  given  to  in- 
fluence witnesses  and  to  enable  the  parties  to  manufacture  a  story 
that  would  meet  the  emergency,  and  offer  this  instead  of  the  regular 
evidence  required  by  law.^^  Where  a  neutral  seeks  to  establish  an 
interest  with  an  enemy  in  a  vessel  or  cargo,  he  will  not  be  permitted 
to  introduce  further  proof  to  establish  his  neutral  interest  after  he 
has  made  a  fraudulent  attempt  to  cover  and  claim  the  enemy's  inter- 
est in  a  prize  court. ^^  The  rule  is  that  where  fraudulent  papers 
have  been  used  further  proof  is  never  allowed.^''  Nor  w^here  there 
is  a  false  destination,  and  false  papers.'^"  And  further  proofs  will 
not  be  allowed  where  the  case  appears  incapable  of  fair  explanation.*^^ 
"Where  there  has  been  gross  prevarication,  or  an  attempt  to  impose 
spurious  claims  upon  the  court,  or  such  a  want  of  good  faith  as  shows 
that  the  parties  cannot  safely  be  trusted  with  an  order  for  further 
proof,  it  will  be  denied."*^^     Neither  will  further  proof  be  allowed 

=*' George,  The,  2  Gall.  (U.S.)  249,  505;    St.   Lawrence,   The,   8   Cranch 

10  Fed.  Gas.  No.  5327.  (U.  S.)    434;    Hazard's  Cargo,   The, 

"Bothnea,   The,    2   Gall.    (U.   S.)  9    Cranch    (U.    S.)    205;    Dos   Her- 

78,   3   Fed.  Cas.   No.   1686;    George,  manos.  The,   2  Wheat.    (U.   S.)    76; 

The,    2    Gall.    (U.    S.)    249,   10   Fed.  Pizarro,  The,  2  Wheat.  (U.  S.)  227; 

Cas.  No.  5327;   Appendix,  1  Wheat.  Sally  Magee,  The,  3  Wall.    (U.   S.) 

(U.  S.)  499.  451;    Gray  Jacket,  The,  5  Wall.   (U. 

^"^  Betsy,  The,  2  Gall.   (U.  S.)    377.  S.)   342;   Adula,  The,  176  U.  S.  361, 

3  Fed.  Cas.  No.  1364;    Graaff  Bern-  20  Sup.  432;  San  Jose  Indiano,  The, 

storf,  The,  3  C.  Rob.  109;  Appendix,  1   Mason    (U.   S.)    38,    21   Fed.   Cas. 

1  Wheat.  (U.  S.)  505.  No.    12324;    Liverpool   Packet,   The, 

■>"  Welvaart,   The,   1   C.   Rob.   122;  1   Gall.    (U.    S.)    513;    15    Fed.   Cas. 

Juffrouw  Anna.  The,  1  C.  Rob.  125;  No.  8406;  Sally,  The,  1  Gall.  (U.  S.) 

Juffrouw   Elbrecht,   The,   1   C.  Rob.  401,  21  Fed.  Cas.  No.  12258;    Both- 

127.  nea,  The.  2  Gall.  (U.  S.)   78,  3  Fed. 

«°  Nancy.    The,     3     C.    Rob.    122;  Cas.  No.  1686;  George,  The.  2  Gall. 

Mars,  The,  6  C.  Rob.  79.  (U.  S.)   249,  10  Fed.  Cas.  No.  5327; 

"Vrouw  Hermina,  The,  1  C.  Rob.  Springbok,    The,    Blatchf.    Pr.    Cas. 

163.  434,  22  Fed.  Cas.  No.  13264. 

^Appendix,     1     Wheat.     (U.     S.) 


§§  3336,  333T.]  prize  cases.  656 

where  tliere  has  been  a  spoliation  of  papers.''^  The  general  rule  is 
that  further  proof  is  not  allowed  where  the  parties  have  been  guilty 
of  gross  fraud,  misconduct  or  illegality.®* 

§  3336.     Further  proof   allowed  in  joint   or   collusive   captures. 

Wliere  the  capture  is  joint  or  collusive  it  becomes  necessary  to  de- 
part somewhat  from  the  usual  simplicity  of  the  ordinary  prize  pro- 
ceedings. Thus,  in  a  case  of  joint  capture  neither  the  papers  of  the 
prize  vessel  nor  the  depositions  of  her  crew  would  throw  any  light 
as  to  the  proportions  in  which  the  owners  and  crew  of  the  capturing 
vessel  are  entitled.  Hence,  the  testimony  which  will  decide  this 
question  must  come  from  other  sources;  accordingly  extrinsic  testi- 
mony is  admitted  to  establish  this  right.  The  rule  is  analogous 
where  the  captors  are  charged  with  fraud.  The  exculpatory  evidence 
could  scarcely  be  expected  from  the  prize  court,  nor  would  the  inter- 
rogatories be  calculated  to  establish  this  fact.  It  could  scarcely  be 
expected  that  evidence  taken  for  the  purpose  of  determining  whether 
the  captured  vessel  ought  to  be  condemned  or  restored,  would  estab- 
lish the  fact  that  such  capture  had  been  either  bona  fide  or  collusive. 
Justice  requires  that  an  opportunity  to  explain  doubtful  or  suspicious 
circumstances  should  be  given;  and  that  fraud  should  not  be  fixed 
until  the  party  charged  has  been  given  an  opportunity  to  clear  him- 
self from  its  imputation.  In  such  cases  nothing  less  than  a  confes- 
sion of  the  fraud  should  move  the  court  to  refuse  further  proof .^^ 

§3337.  Ship's  papers — Prima  facie  proof  requisite. — It  has  be- 
come the  custom  of  the  seas,  as  required  by  the  laws  of  different  na- 
tions, for  the  protection  of  commerce,  that  in  time  of  war,  at  least, 
ships  sailing  the  seas  shall  be  provided  with  certain  papers  and  docu- 
ments that  will  prima  facie  show  ownership,  nationality  and  dis- 
tinction. These  are  to  be  used  in  case  of  seizure  for  protection,  and 
in  the  absence  of  suspicious  circumstances  may  be  regarded  as  suffi- 
cient evidence  of  the  neutrality  of  the  vessel.  The  general  rule  on 
this  subject  is  more  fully  stated  as  follows :  "On  the  question  of  prize 
or  no  prize,  what  evidence  does  the  law  of  nations  admit  for  the  de- 
termination of  it?  The  national  interest  of  every  commercial  coun- 
try requires,  that  some  mode  or  criterion  be  adopted  to  ascertain  the 

"Rising  Sun,  The,  2  C.  Rob.  104.         '^■'George,   The,   1   Wheat.    (U.   S.) 
«*Dos   Hermanos,   The,    2   Wheat.     408. 
(U.  S.)  76. 


657  ship's  papers.  [§  3338. 

ship,  cargo,  destination,  property  and  nation  to  which  such  ship  be- 
longs; not  onl}'  as  a  security  for  a  fair  commerce  according  to  law; 
but  as  a  guard  against  fraud  and  imposition  in  the  payment  and  col- 
lection of  duties,  imposts  and  commercial  revenues.  Also  the  peace 
and  tranquillity  of  nations  equally  require,  that  the  like  criterion 
should  be  adopted,  to  distinguish  the  ships  of  different  countries 
found  on  the  high  seas  in  time  of  war;  to  prevent  an  indiscriminate 
exercise  of  acts  of  hostility,  which  may  lay  the  foundation  of  general 
and  universal  war.  Hence,  it  is,  that  every  commercial  country  has 
directed,  by  its  laws,  that  its  ships  shall  be  furnished  with  a  set  of 
papers  called  ship  papers;  and  that  criterion  the  law  of  nations 
adopts,  in  time  of  war,  to  distinguish  the  property  of  different 
powers,  when  found  at  sea ;  not  indeed  as  conclusive,  but  presumptive 
evidence  only.  Bills  of  lading,  letters  of  correspondence,  and  all 
other  papers  on  board,  which  relate  to  the  ship  or  cargo,  are  also 
considered  as  prima  facie  evidence  of  the  facts  they  speak;  because 
such  papers  naturally  accompany  such  a  mercantile  transaction.'"^® 
A  neutral  who  ships  his  goods  in  an  enemy's  vessel  is  bound  to  send 
with  them  such  documents  as  shall  establish  their  neutral  character, 
and  failing  to  do  so  he  justly  incurs  the  penalty  of  forfeiture.*''^  The 
ship's  papers  found  on  board  are  proper  evidence  only  when  properly 
verified,  the  papers  alone  prove  nothing  and  to  entitle  them  to  any 
weight  they  must  be  supported  by  the  oaths  of  persons  in  the  situa- 
tion to  give  them  validity.*'^  This  rule  was  otherwise  briefly  stated 
as  follows:  "Some  papers  undoubtedly  should  be  carried  for  pro- 
tection ;  that  is  carried  for  the  benefit  of  the  ship  to  divert  suspicion, 
to  avoid  detention  and  delay,  and  to  afford  at  least  prima  facie  proof 
that  she  is  what  she  pretends  to  be,  an  innocent  vessel  engaged  in 
legitimate  business."^® 

§  3338.  Ship's  papers — Production. — A  very  strict  rule  of  prize 
courts  requires  the  captors  immediately  upon  bringing  the  captured 
vessel  into  port  to  deliver  all  papers  found  on  board  the  captured 
ship ;  these  papers  should  be  delivered  to  the  registry  of  the  court  and 
properly  verified  as  the  papers  of  the  captured  vessel.    This  principle 

"<=  Resolution,  The,  2  Dall.  (U.  S.)  United    States,    27    Ct.    CI.    (U.    S.) 

19;  Amiable  Isabella,  The,  6  Wheat.  116. 

(U.S.)  1,69.  '■•''Juno,     The,     2     C.     Rob.     120; 

"'Flying  Fish,  The,  2  Gall.  (U.  S.)  Romeo,  The,  6  C.  Rob.  351. 

373,  9  Fed.  Cas.  No.  4892;    Cole  v.  «=  Gushing  v.  United  States,  22  Ct. 

CI.  (U.  S.)  1,  54. 
Vol.  4  Elliott  Ev. — 42 


§  3339.]  PRIZE  CASES.  658 

and  the  reasons  on  which  it  is  based  were  stated  by  Justice  Story  as 
follows:  "It  is  the  duty  of  tlie  captors,  by  the  general  law  of  prize, 
immediately  upon  arrival  in  port,  to  deliver  upon  oath  to  the  registry 
of  the  court,  all  papers  found  on  board  the  captured  ship.  This  duty 
is  enforced  by  the  general  instructions  of  the  executive  in  the  most 
positive  manner.  A  strict  adherence  to  it  is  expected  on  all  occasions ; 
and  every  deviation  will  be  watched  by  the  court  with  uncommon 
jealousy.  It  is  not  for  the  captors  to  select  such  papers,  as  they  may 
deem  important,  and  present  them  in  the  cause.  Infinite  mischiefs 
and  inconveniencies  might  result  from  such  a  course.  It  would  af- 
ford temptation  to  improper  suppression  of  papers,  and  jeopard  the 
rights,  not  only  of  citizens,  but  of  neutrals."^  °  The  rule  is  other- 
wise stated  thus :  "It  is  also  the  duty  of  the  prize  master  to  deliver 
up  to  the  district  judge  all  the  papers  and  documents  found  on  board 
and,  at  the  same  time,  to  make  an  affidavit  that  they  are  delivered 
up  as  taken,  without  fraud,  addition,  seduction  or  embezzlement."^^ 
The  importance  of  a  ship's  papers  is  such  that  the  master  of  the  ship 
will  not  be  heard  in  a  prize  court  to  aver  either  his  ignorance  or  for- 
getfulness  of  the  ship's  documents.  It  is  his  duty  to  know  what  they 
are,  and  to  admit  his  ignorance  of  their  contents  would  be  to  over- 
throw all  presumptions  which  govern  in  prize  proceedings.'^  Where 
the  ship's  papers  are  withheld  a  full  and  satisfactory  explanation 
must  be  made  to  the  court  or  judgment  of  condemnaiton  will  be 
withheld.'^  But  where  the  ship's  papers  were  regular  it  was  held  chat 
the  mere  possession  of  an  enemy's  license  was  no  evidence  of  an  in- 
tention to  proceed  to  the  enemy's  port,  as  a  vessel  is  justifiable  in 
carrying  papers  to  deceive  an  enemy.''* 

§  3339.  Ship's  papers — Custody. — On  the  production  of  a  ship's 
papers  they  are  to  be  deposited  with  the  prize  court  and  to  be  kept 
by  it  imder  seal.  This  includes  the  papers  found  on  board  the  prize 
vessel  and  all  private  papers,  sailing  directions,  etc.  Ko  person  is  to 
see  or  examine  these  papers  until  the  claims  have  all  been  put  in, 
the  crew  of  the  captured  vessel  examined  and  the  cause  ready  for 
hearing.  The  papers  then,  on  order  of  the  court,  are  open  to  in- 
spection of  counsel.     The  purpose  of  this  practice  is  stated  thus: 

'"Diana,  The,  2  Gall.   (U.  S.)  93,         "Arabella,   The,   2   Gall.    (U.    S.) 

7  Fed.  Gas.  No.  3876.  368,  1  Fed.  Gas.  No.  501. 

'1  Appendix,  1  Wheat.  495.  "*  United     States     v.     Matilda,     5 

'==  Julia,    The,    8    Granch    (U.  S.)      Hughes    (U.    S.)    44,    26    Fed.    Gas. 

181.  No.  15741. 


G59  ship's  papers.  [§  33-10. 

''One  object  of  this  practice  is  that  the  master  and  crew  of  the  prize 
shall  testify  to  what  is  in  their  own  knowledge,  and  not  be  able  to 
shape  their  testimony  so  as  not  to  contradict  the  documents.  An- 
other is,  that  persons  coming  forward  to  claim  captured  property 
shall  state  their  claims  according  to  the  facts,  without  the  oppor- 
tunity to  shape  them  according  to  documents  or  papers  on  board.  If 
the  ship's  papers  are  true,  and  the  claims  true,  there  will  be  no  ma- 
terial variation,  and  no  injustice  is  done  to  claimants,  for  mere 
formal  or  verbal  mistakes  in  claims  may  always  be  freely  corrected, 
if  the  examination  shows  them  to  be  bona  fide,  and  no  claim  is  ever 
rejected  for  an  error  that  is  amendable.  But,  if  the  papers  are  false, 
simulated  equivocal,  or  contradictory,  the  obligation  to  put  in  the 
claims  without  opportunity  to  inspect  the  papers,  will  almost  always 
lead  to  detection  of  the  fraud.  Another  reason  given  for  the  practice 
is  that,  if  the  papers  were  open  to  all,  persons  might  come  forward 
who  had  no  actual  interest,  and  represent  the  interests  indicated  by 
the  papers."'^^ 

§  3340.  Ship's  papers — Destruction  and  spoliation, — The  destruc- 
tion or  spoliation  of  a  ship's  papers  raises  the  strongest  presumption 
against  the  good  faith  and  neutrality  of  the  captured  vessel.  It  is 
regarded  as  a  strong  circumstance  of  suspicion.  It  was  formerly  the 
rule  that  proof  of  the  spoliation  of  papers  excludes  further  proof, 
and  does  of  itself  infer  condemnation  on  the  presumption  that  the 
papers  were  destroyed  for  the  purpose  of  fraudulently  suppressing 
evidence  which,  if  preserved,  would  produce  the  same  result.  This 
rule  has  been  modified  to  the  extent  of  holding  that  if  all  other  cir- 
cumstances are  clear,  the  mere  destruction  or  spoliation  of  papers 
will  not  of  itself  condemn,  and  especially  where  it  was  done  by  one 
who  had  some  interest  of  his  own  to  protect  by  the  act.''^  It  is  now 
held  to  be  a  circumstance  subject  to  explanation ;  "yet  if  the  explana- 
tion be  not  prompt  or  frank,  or  be  weak  and  futile,  if  the  case  labors 
under  heavy  suspicions,  or  if  there  be  a  vehement  presumption  of  bad 
faith,  or  gross  prevarication,  it  is  ground  for  the  denial  of  further 
proof,  and  condemnation  ensues  from  defects  in  evidence,  which  the 
party  is  not  permitted  to  supply.""     This  principle  was  stated  by 

"Cuba,   The,   2   Sprague    (U.   S.)  The,   8    Cranch    (U.    S.)    181;    Ber- 

168,    6    Fed.    Cas.    No.    3457;     San  muda,   The,    3   Wall.    (U.    S.)    514; 

Jose  Indiano,  The,   2  Gall.    (U.   S.)  Boston,  The,  1   Sumn.    (U.  S.)    328, 

268,  21  Fed.  Cas.  No.  12322.  3  Fed.  Cas.  No.  1673. 

'« Hunter,     1     Dods.     480;     Julia,  "  Peterhoff,  The.  Blatchf.  Pr.  Cas. 


§    3341.]  PRIZE    CASES. 


660 


Sir  William  Scott,  thus:  "No  rule  can  be  better  known  than  that 
neutral  masters  are  not  at  liberty  to  destroy  papers;  or,  if  they  do, 
that  they  will  not  be  permitted  to  explain  away  such  a  suppression, 
by  saying  'they  were  only  private  letters.'  In  all  cases  it  must  be 
considered  as  proof  of  mala  fides;  and,  where  that  appears,  it  is  an 
universal  rule  to  presume  the  worst  against  those  who  are  convicted 
of  it.  It  will  always  be  supposed  that  such  letters  relate  to  the  ship 
or  cargo,  and  it  was  of  material  consequence  to  some  interests  that 
they  should  be  destroyed."''^  Where  the  destruction  or  spoliation  is 
not  to  be  imputed  to  the  prize  master  copies  instead  of  the  originals 
may  be  used.'^^ 

§  3341.     Ship's    papers — ^Absence,    fraudulent    concealment,    etc. 

The  absence  or  the  fraudulent  concealment  of  a  ship's  papers  stands 
upon  the  same  ground  as  destruction  or  spoliation ;  and  where  falsifi- 
cation or  fraudulent  concealment  of  papers  is  shown  further  proof 
will  not  be  allowed  to  the  party.  Of  this  rule  Justice  Story  said : 
"By  the  known  practice  of  the  court  in  cases  of  fraudulent  conceal- 
ment or  falsification  of  papers  the  party  would  not  be  entitled  to  the 
benefit  of  further  proof,  for  that  is  an  indulgence  granted  only  to 
honest  mistake  and  unintentional  error."^"  As  the  purpose  of  these 
papers  is  to  furnish  prima  facie  proof  of  innocence  and  honesty, 
therefore  their  absence  is  no  more  than  the  foundation  of  a  reason- 
able suspicion  which  justifies  an  inquiry  into  the  true  character  of 
the  vessel  and  the  voyage.'^  "The  absence  of  a  log-book,  unaccounted 
for,  is  a  matter  of  distrust  in  time  of  war  as  to  the  integrity  of  pur- 
pose in  the  outfit  and  operation  of  a  trading  vessel  captured  under 
equivocal  and  disparaging  circumstances;  as  it  is  a  document  so 
usual  and  important,  as  evidence  of  the  transactions  of  a  ship  navi- 
gating abroad,  and  one  which  so  universally  accompanies  trading 

463,  19  Fed.  Cas.  No.  11024;  Hunter,  ^Liverpool   Packet,   The,   1    Gall. 

1  Dods.  480;  Pizarro,  The,  2  Wheat.  (U.  S.)  513,  15  Fed.  Cas.  No.  8406; 
(U.  S.)    227;    Bernard!  v.  Motteux,  Juffrouw  Anna,  The,  1  C.  Rob.  125; 

2  Doug.  574;  Rising  Sun,  The,  2  C.  Welvaart,  The,  1  C.  Rob.  122;  Een- 
Rob.  104;  Ella  Warley,  The,  rom.  The,  2  C.  Rob.  1;  Springbok, 
Blatchf.  Pr.  Cas.  288,  8  Fed.  Cas.  The,  Blatchf.  Pr.  Cas.  434,  22  Fed. 
No.  4373;  1  Kent  Comm.  157,  158.  Cas.  No.  13264;   Stephen  Hart,  The, 

'^Peterhoff,  The,  Blatchf.  Pr.  Cas.  Blatchf.  Pr.  Cas.  387,  22  Fed.  Cas. 

463,    19    Fed.   Cas.   No.   11024;    Two  No.  13364. 

Brothers,  The,  1  C.  Rob.  131;  Rosa-  ^^  Cushing  v.  United  States,  22  Ct. 

lie  and  Betty,  The,  2  C.  Rob.  343.  CI.  (U.  S.)  1,  54. 

'"Julia,  The,  8  Cranch  (U.  S.)  181. 


661  ship's  papers.  [§§  3342,  3343. 

vessels  employed  in  foreign  commerce.  Its  absence  gives  room  for 
presumption  that  material  matters  have  been  fraudulently  suppressed, 
and  particularly  wliere  an  object  may  exist  for  keeping  it  out  of 
view.'"*-  So,  an  attempt  on  the  part  of  a  neutral  owner  to  mislead  a 
blockading  force  by  fraudulent  representations  of  the  ship's  papers 
was  held  to  amount  to  such  fraudulent  misconduct  as  would  justify 
the  confiscation  of  the  vessel.^^ 

§  3342.  Ship's  papers — Enemy's  license. — So,  it  is  the  rule  that 
navigating  under  a  license  from  an  enemy,  is  prima  facie  sufficient 
cause  for  a  condemnation.  Ignorance  of  the  fact  of  the  nature  of 
the  license  is  held  to  be  a  sufficient  excuse  unless  the  claimants  have 
such  constructive  notice  as  will  preclude  them  from  showing  a  want 
of  actual  notice.  Thus,  the  knowledge  of  the  super-cargo  is  attributa- 
ble to  the  shipper.^*  In  the  absence  of  positive  proof  of  an  enemy's 
license  the  circumstances  may  be  such  as  to  raise  a  presumption  that 
the  vessel  had  such  a  license  and  the  burden  of  proof  is  then  upon 
the  claimant  to  repel  such  presumption.^^ 

§  3343.  Ship's  papers — Passport,  flags,  etc. — Ships  are  generally 
required  either  by  law  or  custom  to  carry  passports,  and  in  time  of 
war  such  documents  are  regarded  as  indispensable.  The  nationality, 
neutrality  or  hostility  of  a  vessel  are  determined  by  the  documents 
such  as  passport,  license,  etc.,  together  with  the  flag  under  which  she 
sails.  Owners  of  vessels  are  bound  by  these  insignia  of  national 
character,  and  when  they  agree  to  take  the  flag  and  pass  of  a  country 
they  are  not  permitted  in  case  of  capture  to  change  the  position  or 
nationality  thus  assumed.  This  insignia  of  nationality  constitutes 
largely  the  proof  as  to  the  liability  of  a  vessel  to  condemnation.^" 

'=' Joseph  H.  Toone,  The,  Blatchf.  ™  William   Bagaley,   The,   5   Wall. 

Pr.  Cas.  223,  13  Fed.  Cas.  No.  7541;  (U.    S.)    377,    409;    Aurora,    The,    8 

Mersey,  The,  Blatchf.  Pr.  Cas.  187,  Cranch    (U.    S.)    203;    Hallie   Jack- 

17  Fed.  Cas.  No.  9489.  son.    The,   Bratchf.    Pr.   Cas.    41,    11 

*^  Louisa  Agnes,  The,  Blatchf.  Pr.  Fed.     Cas.     No.     5961;     Rogers    v. 

Cas.  107,  15  Fed.  Cas.  No.  8531.  Amado,    The,    Newb.    400,    20    Fed. 

^  Hiram,   The,   1   Wheat.    (U.    S.)  Cas.    No.    12005;     Vrow    Elizabeth, 

440;  Ariadne,  The,  2  Wheat.  (U.  S.)  The,  5  C.  Rob.  2;   Fortuna,  1  Dods. 

143;      Langdon      Cheves,      The,      4  81,     87;      Success,     1     Dods.     131; 

Wheat.    (U.  S.)   103.  Primus,    The,    29   Eng.    Law   &   Eq. 

^Langdon  Cheves,  The,  4  Wheat.  589;    Industrie,   The,   33   Eng.   Law 

(U.  S.)   103.  &  Eq.  572. 


§§  3344,  3345.]  prize  cases.  662 

§  3344.  Joint  capture — Presumption. — In  prize  cases  it  frequently 
happens  that  more  than  one  vessel  or  crew  claim  a  right  to  share 
in  the  prize  on  the  ground  that  they  assisted  in  the  capture.  In  such 
cases  it  is  called  a  joint  capture.  This  right  to  share  in  the  capture 
depends  on  the  proof,  and  as  to  whether  or  not  the  evidence  suffi- 
ciently shows  that  the  claimants  did  assist  in  the  capture  within  the 
meaning  of  the  law.  According  to  the  English  law  the  term  captors 
or  takers  includes  both  those  who  actually  make  a  prize  and  all  who 
are  associated  in  the  taking.  This  association  may  be  thus  classified : 
(1)  Vessels  that  happen  to  join  in  a  chase  or  be  in  sight  at  the  time 
of  the  capture;  (2)  or  imposed  by  superior  command  as  where  a  fleet 
or  several  vessels  are  engaged  in  a  blockade  or  other  common  enter- 
prise. In  the  first  case,  according  to  the  English  law,  there  was  the 
presumption  of  fact  that  all  the  King's  ships  in  sight  during  the 
chase  or  at  the  time  of  the  capture,  did  by  their  presence  encourage 
the  captors  and  discourage  the  enemy ;  and  the  presumption  was  that 
such  was  their  intention.  However,  this  presumption  could  be  over- 
come by  proof  that  a  vessel  claiming  as  a  joint  captor  could  not  have 
been  seen  by  one  or  the  other  of  the  belligerents,  or  that  there  was 
no  intention  to  aid,  but  that  the  claimant  vessel  was  engaged  in  some 
duty  or  business  inconsistent  with  either  an  effort  or  intention  to  aid 
in  the  capture.^'' 

§  3345.  Joint  capture — Burden  of  proof. — The  vessel  and  crew 
actually  present  at  the  capture  are  primarily  entitled  to  the  prize; 
hence,  it  logically  follows  that  if  any  other  vessel  claims  the  right  to 
share  in  the  prize  it  must  establish  this  right  by  competent  evidence. 
It  therefore  follows  naturally  that  the  burden  of  proof  is  upon  such 
joint  claimant  to  bring  itself  clearly  within  the  construction  of  the 
act  of  Parliament,  or  the  rules  of  law,  giving  it  the  right  to  share  in 
the  prize.  This  rule  as  to  burden  of  proof  was  stated  by  Sir  William 
Scott  as  follows:  "In  all  cases,  the  onus  probandi  lies  on  those  set- 
ting up  the  construction,  because  they  are  not  persons  strictly  within 
the  words  of  the  act,  but  let  in  only  by  the  interpretation  of  those 
acting  under  a  competent  authority  to  interpret  it;  it  lies  with  the 
claimants  in  joint  capture,  therefore,  either  to  allege  some  cases  in 
which  their  construction  has  been  admitted  in  former  instances,  or 

»^Selma,  The,  1  Low.  (U.  S.)  30,  125;  Ella  and  Anna,  The,  2  Sprague 
21  Fed.  Cas.  No.  12647;  Galen.  2  (U.  S.)  267,  26  Law  R.  669,  8  Fed. 
Dods.  19;   La  Melanie,  2  Dods.  122,     Cas.  No.  4368. 


663  JOINT    CAPTUKE.  [§    33-16. 

to  show  some  principle  in  their  favor,  so  clearly  recognized  and  es- 
tablished as  to  have  become  almost  a  first  principle  in  cases  of  this 
nature.  The  being  in  sight,  generally,  and  with  some  few  exceptions, 
has  been  so  often  held  to  be  sufficient  to  entitle  parties  to  be  admitted 
joint  captors,  that  where  that  fact  is  alleged,  we  do  not  call  for  par- 
ticular cases  to  authorize  the  claims ;  but  where  that  circumstance  is 
wanting,  it  is  incumbent  on  the  party  to  make  out  his  claim  by  an 
appeal  to  decided  cases,  or  at  least  to  principles,  which  are  fairly  to 
be  extracted  from  those  cases."^* 

§  3346.  Joint  capture — Sight  and  signal  distance. — To  entitle  a 
claimant  to  share  as  a  joint  captor,  the  proof  must  show  that  he  was 
within  sight  or  signal  distance.  It  is  not  sufficient  to  show  that  at 
some  time  during  the  chase  the  claimant  was  within  sight  of  the 
captor,  but  it  must  appear  that  at  the  time  of  the  capture  the  claim- 
ant was  within  sight  of  both  vessels,  or  that  she  was  within  such  posi- 
tion that  the  usual  signals,  if  made  from  the  actual  captors  in  the 
usual  way,  could  have  been  heard  or  read  and  understood  from  the 
deck  or  top  gallant  forecastle,  and  that  she  was  prepared  and  able  to 
render  assistance,  if  needed,  in  making  the  capture.  The  general 
rule  as  gathered  from  the  decisions  as  to  the  position  and  distance 
of  a  vessel,  to  entitle  her  to  share  in  the  prize  was  stated  thus :  "She 
must  have  been  so  situated  as  to  be  able  of  her  own  accord,  to  con- 
tribute direct  assistance  to  the  captors  b}^  deterring  tlie  enemy  from 
resistance,  or  by  aiding  physically  in  overcoming  such  resistance; 
and  the  vessel  to  be  aided  must  have  possessed  the  means  of  com- 
municating intelligent  directions  to  the  one  whose  aid  was  needed." 
This  claiming  a  right  to  share  in  the  prize  on  account  of  being  near, 
but  where  no  actual  assistance  was  rendered,  is  known  as  the  doctrine 
of  constructive  capture  and  it  has  been  limited  and  guarded  by  the 
courts  and  legal  profession,  and  in  the  absence  of  proof  of  actual  as- 
sistance the  presumption  of  law  leans  in  favor  of  the  actual  captor. 
"The  mere  physical  ability  to  discern  the  prize,  or  even  the  seeing 
her  from  the  mast-head  not  imparting  the  ability  to  contribvite  as- 
sistance in  making  the  capture,  does  not  seem  to  liave  been  recognized, 
in  any  authoritive  case,  as  evidence  of  constructive  assistance  to  an- 
other ship  in  effecting  a  capture."**® 

"'Vryheid,   The,    2   C.   Rob.   1622;  280;  Ella  and  Anna.  The,  2  Sprague 

Selma.  The,  1   Low.    (U.  S.)    30,   21  (U.  S.)    267,  26  Law  R.  669,  8  Fed. 

Fed.  Cas.  No.  12647;   L'Alerte.  6  C.  Cas.  No.  4368. 

Rob.    238;    La    Gloire,    Edw.    Adm.  '"  Anglia,    The,    Blatchf.    Pr.    Cas. 


3347.] 


PRIZE    CASES. 


664 


§  3347.  Joint  capture — Common  enterprise. — Where  vessels  are 
engaged  in  a  common  enterprise  and  under  one  authority  or  com- 
mand the  claiming  vessel  need  only  show  that  it  was  one  of  the  as- 
sociates; that  the  capture  was  made  by  another  of  such  associates, 
and  that  it  was  within  the  purpose  of  the  association.  When  such 
facts  are  proved  it  is  held  that  the  actual  position  of  the  claiming 
vessel  at  the  time  of  the  capture  is  unimportant.^"  ^A^iere  the  claim 
is  made  on  account  of  a  joint  venture  or  association  the  test  seems  to 
be  in  the  proof  of  the  fact  that  there  was  no  separation  of  service. 
If  the  service  is  common  and  identical  and  there  is  no  separation 
in  the  common  purpose  or  venture  a  capture  made  by  one  under  such 
circumstances  is  entitled  to  be  shared  by  all.  So  if  all  are  engaged 
in  one  common  undistinguishable  service  having  but  one  object  im- 
mediate or  remote,  the  several  vessels  performing  the  duty  assigned 
to  each,  the  capture  by  one  has  been  held  to  inure  to  all.^^  Lord  Stowell 
expressed  the  principle  underlying  this  class  of  cases  to  the  effect 


566,  1  Fed.  Cas.  391;  Atlanta,  The, 
2  Sprague  (U.  S.)  251,  3  Am.  L. 
Reg.  (N.  S.)  675,  26  Law  R.  204.  2 
Fed.  Cas.  No.  619;  Cherokee,  The, 
2  Sprague  (U.  S.)  235,  3  Am.  L. 
Reg.  (N.  S.)  289,  5  Fed.  Cas.  No. 
2640;  Ella,  The,  2  Int.  Rev.  Rec. 
117,  8  Fed.  Cas.  No.  4367;  Ella  and 
Anna,  The,  2  Sprague  (U.  S.)  267, 
26  Law  R.  669,  8  Fed.  Cas.  No. 
4368;  St.  John,  The,  2  Sprague  (U. 
S.)  266,  21  Fed.  Cas.  No.  12225; 
Mangrove  Prize  Money,  The,  188  U. 
S.  720,  23  Sup.  Ct.  343;  Selma,  The, 
1  Low.  (U.  S.)  30,  21  Fed.  Cas.  No. 
12647;  Robert,  The,  3  C.  Rob.  194, 
201;  Le  Nlemen,  1  Dods.  S;  Finan- 
cier, 1  Dods.  61;  Empress,  1  Dods. 
368;  Arthur,  1  Dods.  423;  Dord- 
recht, The,  2  C.  Rob.  55;  Forsigheid, 
The,  3  C.  Rob.  311;  Lord  Middle- 
ton,  The,  4  C.  Rob.  153;  L'Alerte,  6 
C.  Rob.  238;  Diomede,  1  Acton  239; 
Galen,  2  Dods.  19;  L'Etoile,  2  Dods. 
106;  Naples  Grant,  2  Dods.  273; 
Vryheid,  The,  2  C.  Rob.  16;  Odin, 
The,  4  C.  Rob.  318,  325;    Trinidad, 


Island  of,  5  C.  Rob.  92;  La  Furieuse, 
Stew.  N.  Sc.  177. 

«°  Selma,  The,  1  Low.  (U.  S.)  30, 
21  Fed.  Cas.  No.  12647;  Atlanta, 
The,  2  Sprague  (U.  S.)  251;  3  Am. 
L.  Reg.  (N.  S.)  675,  26  Law  R.  204, 
2  Fed.  Cas.  No.  619;  La  Henrietta, 
2  Dods.  96;  Naples  Grant,  2  Dods. 
273,  286;  Forsigheid,  The,  3  C.  Rob. 
311,  315;  Empress,  1  Dods.  368; 
Nordstern,  Acton  128,  140.  But  see, 
Trinidad,  Island  of,  5  C.  Rob.  92; 
Arthur,  1  Dods.  423;  Le  Bon  Aven- 
ture,  1  Acton  211,  239;  Anglia,  The, 
Blatchf.  Pr.  Cas.  566,  1  Fed.  Cas. 
391;  St.  John,  The,  2  Sprague  266, 
21  Fed.  Cas.  No.  12225;   Aries,  The, 

2  Sprague  (U.  S.)  262,  26  Law  R. 
336,  1  Fed.  Cas.  No.  529;  Cherokee, 
The,  2  Sprague  (U.  S.)  235,  3  Am. 
L.  Reg.  (N.  S.)  289,  5  Fed.  Cas. 
No.  2640;  Diomede,  1  Acton  239; 
Nostra  Signora  de  los  Dolores,  1 
Acton  262. 

«i  Selma,  The,  1  Low.  (U.  S.)  30, 
21  Fed.  Cas.  No.  12647;   Harmonic, 

3  C.  Rob.  318;  Guilliaume  Tell,  The, 
Edw.  Adm.  6. 


G65 


JOINT    CAPTURE. 


[§    3347. 


that  privity  of  purpose  created  community  of  interest.^-  According 
to  the  holdings  in  some  old  cases,  this  rule  of  sharing  in  the  prize 
on  account  of  association  or  joint  venture  does  not  apply  to  what 
is  known  in  maritime  law  as  head  money.^^  Sight  alone  is  not  suffi- 
cient to  entitle  a  claimant  to  head  money;  this  is  restricted  within 
narrower  limits  than  that  of  prize.  Actual  contribution  or  assist- 
ance is  necessary  to  entitle  a  joint  captor  to  share  in  head  money.®* 
The  rule  applying  to  joint  capture  does  not  obtain  generally  where 
the  capture  is  made  by  the  combined  efforts  of  land  and  naval  forces.®^ 


«=Selma,  The,  1  Low.  (U.  S.)  30, 
21  Fed.  Cas.  No.  12647;  Dordrecht, 
The,  2  C.  Rob.  55. 

«^  L'Alerte.  6  C.  Rob.  238. 

''^El  Rayo,  1  Dods.  42;  La  Clor- 
inde,  1  Dods.  436;  Ville  de  Varsovie, 
2  Dods.  301;  La  Bellone,  2  Dods. 
343;  La  Gloire,  Edw.  Adm.  280. 


"^  Siren,  The,  13  Wall.  (U.  S.) 
389;  United  States  v.  Farragut,  22 
Wall.  (U.  S.)  406;  Porter  v.  United 
States,  106  U.  S.  607,  1  Sup.  Ct. 
539;  Dordrecht,  The,  2  C.  Rob.  55; 
Genoa,  2  Dods.  444;  Hoagskarpel, 
Lords  of  App.  1785;  Booty  in  the 
Peninsula,  1  Hagg.  Adm.  39,  47. 


CHAPTEE  CLXVI. 


SALVAGE. 

Sec.  Sec. 

3348.  Generally.  3359.  Towage  and  salvage. 

3349.  Definition.  3360.  Amount    of    salvage — Circum- 

3350.  Definitions— By  courts.  stances  control. 

3351.  Success  essential.  3361.  Agreement    for    salvage    serv- 

3352.  Success  essential — Exceptions.  ices — Effect. 

3353.  Burden  of  proof.  3362.  Agreement— Effect  as  a  meas- 

3354.  Essential      elements  —  Claim-  ure  for  amount  of  salvage. 

ant's  proof.  3363.  Agreement    valid— A    bar    to 

3355.  Rescue— Impending  peril.  salvage  claim. 

3356.  Impending     peril— Degree     of     3364.  Agreement    invalid— Evidence 

proof.  of  need  of  aid. 

3357.  Derelict  property.  3365.  Agreement— Burden  of  proof. 

3358.  Derelict     property— Duty      of     3366.  Claim     for     salvage— Forfeit- 

finder,  ure. 

§  3348.  Generally. — It  has  always  been  the  policy  of  maritime  law 
to  encourage  the  saving  of  property,  such  as  ships  and  cargo  when 
they  are  in  peril  and  in  danger  of  being  lost  at  sea.  Mariners  as  a 
class  are  brave  and  courageous  and  are  usually  ready  and  willing 
to  make  sacrifices,  endure  hardships  and  assume  great  risks  in  order 
to  save  the  lives  of  passengers  and  their  fellow  seamen,  or  to  recover 
vessels  and  property  that  are  in  imminent  danger  of  being  lost. 
When  sucli  risks  have  been  assumed,  the  dangers  of  the  sea  braved, 
and  valuable  property  rescued  and  preserved,  the  law  does  not  leave 
the  compensation  of  the  rescuers  to  the  mere  whim  or  gratitude  of 
the  owner,  but  rewards  with  a  compensation  that  is  in  some  degree 
adequate  to  the  dangers  encountered  and  the  value  of  the  property 
thus  preserved.  This  compensation  the  law  calls  salvage  and  the 
persons  saving  the  property,  salvors.  Navigation  and  commerce 
depend  largely  for  protection  on  the  services  of  salvors  and  it  is  to 
the  interest  of  these  that  such  recompense  be  awarded  the  salvors  as 
shall  encourage  them  to  exertion  and  honesty  in  rescuing  vessels  and 
cargoes.     At  the  same  time  courts  recognize  the  necessity  of  so  ad- 

G66 


667  DEFixiTiON".  [§§  3349,  3350. 

ministering  the  salvage  laws  as  to  prevent  professional  wreckers  from 
exacting  unreasonable  and  extortionate  amounts  in  the  hour  of  peril ; 
in  such  cases  maritime  courts  will  not  be  bound  by  the  quantum 
meruit  rule  of  measuring  such  services  by  their  actual  value,  but 
pursue  a  more  liberal  policy  and  give  a  reward  or  bounty  to  those 
whose  labor,  intrepidity  and  perseverance  save  vessels  from  the  dan- 
gers of  the  sea.^ 

§  3349.  Definition. — Courts  of  admiralty  and  writers  on  maritime 
law  have  given  various  definitions  for  the  term  salvage.  Many  of 
these  are  misleading  and  some  are  incomplete.  It  is  apparent  from 
the  adjudicated  cases  that  the  definitions  are  inaccurate  which  at- 
tempt to  limit  salvage  to  compensation  for  services.  While  it  is  al- 
ways compensation,  yet  it  is  often  in  the  nature  of  a  reward  or 
bounty,  depending  on  circumstances.  Eecent  text  writers  say  that 
"salvage  is  the  reward  payable  for  services  rendered  in  saving 
any  wreck  or  in  rescuing  a  ship  or  boat,  or  her  cargo  or  apparel,  or 
the  lives  of  persons  belonging  to  her,  from  loss  or  danger  at  sea."^ 
Mr.  Benedict  says  of  it:  "Salvage  is  the  compensation  due  to  per- 
sons by  whose  voluntary  assistance  a  ship  or  its  lading  has  been  saved 
to  the  owner  from  impending  peril,  or  recovered  after  actual  loss."^ 
One  of  the  ingredients  of  a  salvage  service  is  enterprise  in  the 
salvors  in  going  out  in  tempestuous  weather  to  assist  a  vessel  in  dis- 
tress.'* 

§  3350.  Definitions — By  courts. — A  more  comprehensive  defini- 
tion, as  given  by  one  federal  court :    "Salvage  consists — First,  of  an 

1  Sandringham,  The,  10  Fed.  556,  Ewbank,  The,  1  Sumn.  (U.  S.)  400; 

572;    Coast  &c.   Co.  v.  Phoenix   Ins.  Cargo    of    the    Edwards,     12     Fed. 

Co.,    13    Fed.    127;    Fannie    Brown,  508;   Hebe,  The,  L.  R.  4  P.  D.  217; 

The,  30  Fed.  215;  Henry  Steers,  Jr.,  Craigs,  The,  L.  R.  5  P.  D.  186.     See 

The,    110    Fed.    578;     Cromwell    v.  also,  Theta,  The,  135  Fed.  129. 

Island   City,    The,    1    Cliff.    (U.    S.)  "Williams  &  Bruce  Adm.  127. 

221,    228,    6    Fed.    Cas.    No.    3410;  =•  Benedict   Adm.,    §    300;    Parsons 

Blaireau,    The,    2    Cranch     (U.    S.)  Shipping  260;  Hand  v.  Elvira,  The, 

266;    Camanche,    The,    8    Wall.    (U.  Gilp.    (U.   S.)    60,  11  Fed.  Cas.  No. 

S.)    448;    Blackwall,   The,    10   Wall.  6015;    Rita,   The,   10   C.   C.   A.   629; 

(U.   S.)    1;    Sabine,  The,  101   U.   S.  62  Fed.  761;   Norris  v.  Island  City, 

384;  Fisher  V.  Sibyl,  The,  5  Hughes  The,    1   Cliff.    (U.    S.)    219,   18    Fed. 

(U.    S.)     61,    6    Hall    L.    J.    509,    4  Cas.  No.  10306. 

Wheat.    98,    9    Fed.    Cas.    No.    4824;  ^  Fanny  Brown,  The,  30  Fed.  215; 

Hand  v.  Elvira,  The,  Gilp.    (U.  S.)  Clifton,  The,  3  Hagg.  Adm.  117. 
60,   11   Fed.    Cas.   No.    6015;    Henry 


§    3351.]  SALVAGE.  668 

adequate  compensation  for  the  actual  outlay  of  labor  and  expense 
made  in  the  enterprise;  and  second,  of  the  reward  as  bounty  allowed 
from  motives  of  public  policy  as  a  means  of  encouraging  extraordi- 
nary exertions  in  the  saving  of  life  and  property  in  peril  at  sea."^ 
A  federal  court  recently  said  of  it:  "Salvage  is  decreed  by  courts 
of  admiralty  as  a  reward  for  services  successfully  rendered  in  saving 
I  property  from  maritime  damage,  not  on  the  principle  of  a  quantum 
meruit,  or  as  compensatory  remuneration,  but  as  a  reward  for  perilous 
services,  and  as  an  inducement  to  seamen  and  others  to  readily  en- 
gage in  such  undertakings  and  assist  in  saving  life  and  property. 
Danger,  peril  and  a  successful  deliverance  therefrom  either  by  volun- 
tary effort,  special  request  of,  or  by  contract  with  the  owner  consti- 
tutes a  case  of  salvage,  whether  rendered  by  one  or  more  salvors."® 
As  otherwise  defined  it  is  said  to  be  "the  relief  of  property  from  an 
impending  peril  of  the  sea  by  the  voluntary  exercise  of  those  who  are 
under  no  legal  obligation  to  render  assistance  and  the  consequent 
ultimate  safety  of  the  property,  constitutes  a  technical  case  of  sal- 
vage."^ "Salvage  is  a  reward  decreed  by  a  court  of  admiralty  for 
services  successfully  rendered  in  saving  property  from  maritime 
danger  by  persons  under  no  obligation  of  duty  to  render  the  serv- 
ices, and  who  voluntarily  enter  upon  them."^  "Salvage  is  an  amount 
allowed  in  excess  of  mere  remuneration  for  work  and  labor,  or  prin- 
ciples of  public  policy,  not  only  as  a  reward  to  the  particular  sal- 
vors, but  as  an  inducement  to  others  to  undergo  risk  and  peril  in 
the  rescue  of  property  from  danger."^ 

§  3351.  Success  essential. — Salvage  is  payable  only  out  of  the 
property  rescued  and  saved.  The  essential  ingredients  which  must 
be  established  in  order  to  warrant  a  judgment  for  salvage  presupposes 
that  the  salvage  enterprise  has  been  successful  and  that  the  propert}^ 
or  some  part  of  it  has  been  saved.  The  usual  proceedings  by  salvors 
is  by  an  action  in  rem  and  in  all  such  cases  there  could  be  neithei^ 
action  nor  judgment  except  there  is  some  property  which  could  be 

=  Egypt,    The,    17    Fed.    359,    376;  1  Cliff.   (U.  S.)   210,  216,  1  Fed.  Cas. 

Catalina,  The,  44  C.  C.  A.  638,  105  No.  55;   Davey  v.  Mary  Frost.  The, 

Fed.  633.  3  Cent.  L.  J.  419,  22  Int.  Rev.  Rec. 

"Flottbek,   The,   55   C.   C.  A.   448,  82,  7  Fed.  Cas.  No.  3591;   Queen  of 

118  Fed.  954.  the  Pacific,  The,  21  Fed.  459. 

"  Hennessey  v.   Versailles,  The,  1  ^  Fanny  Brown,  The,  30  Fed.  215. 

Curt.    (U.  S.)  353,  11  Fed.  Cas.  No.  'Fanny  Brown,  The,  30  Fed.  215; 

6365;    Adams   v.    Island    City,    The,  Industry,  The,  3  Hagg.  Adm.  203. 


G69  SUCCESS — WHEN    ESSENTIAL.  [§    3353. 

executed.  But  in  any  event  before  salvage  can  be  decreed  the  proof 
must  show  that  the  enterprise  was  successful,  and  that  property  of 
some  value  was  rescued  and  saved  out  of  which  the  salvage  may  be 
paid.  "The  very  principle  of  salvage  is,  to  give  reward  for  exertions 
which  have  been  successful."^"  Salvage  will  not  be  decreed  where 
the  evidence  shows  that  the  salvors  voluntarily  abandoned  the  enter- 
prise and  left  the  disabled  vessel  in  the  same  plight  as  when  the  serv- 
ices were  undertaken." 

§  3352.  Success  essential — Exceptions. — There  are  some  apparent 
exceptions  to  the  rule  in  the  preceding  section  to  the  effect  that  the 
proof  must  show  that  the  wrecking  enterprise  was  successful.  The 
exception,  however,  does  not  change  the  rule  in  that  it  must  be  shown 
that  property  of  some  value  was  saved.  But  it  is  not  absolutely  es- 
sential that  it  be  shown  by  the  evidence  that  the  claimant  vessel  or 
crew  ultimately  produced  this  result;  and  it  is  to  this  part  of  the 
rule  that  the  exception  applies.  The  first  proposition  under  this  ex- 
ception is  that  where  the  peril  is  continuous  all  vessels  whose  exer- 
tions contributed  directly  to  the  final  rescue  may  share  in  the  award.^- 
Another  exception  is  found  in  that  class  of  cases  where  the  salvors 
make  the  most  meritorious  exertions  and  where  either  from  neces- 
sity the  salvors  must  abandon  the  property  in  order  to  save  life,"  or 
where,  from  accidental  cause  and  the  design  of  those  in  charge  of 
the  imperiled  vessel,  the  immediate  efforts  of  the  claimant  were  un- 
successful, but  the  imperiled  vessel  is  finally  rescued  by  other  means.  ^* 
Still  another  exception  is  found  where  salvage  is  allowed  where  it  is 
made  to  appear  that  the  claimants  as  salvors  succeeded  in  bringing 
the  property  into  a  position  or  condition  where  it  was  saved  by  the 
subsequent  exertions  of  others.     In  this  class  proof  of  continuous 

^oBIackwall,  The,  10  Wall.  (U.  S.)  Avoca,  The.  39  Fed.  567;  E.  U.,  The, 

1,   12;    Norris  v.   Island  City,  The,  1   Spink  63;    Aztecs,  The,   21   L.  T. 

1   Cliff.    (U.    S.)    219,    18    Fed.    Cas.  N.  S.  797. 

No.  10306;  Anderson  v.  Edam,  The,  "  Algitha,   The,  17   Fed.  551;    An- 

13  Fed.   135;    Santa  Ana,   The,   107  derson  v.  Edam,  The,  13  Fed.  135; 

Fed.   527;    Henry    Steers,   Jr.,    The,  Aberdeen,  The,   27  Fed.  479;   Veen- 

110    Fed.    578;    Cargo    of    the    Ed-  dam.  The,  46  Fed.  489. 

wards,  12  Fed.  508;    Scott  v.  Clara  "Anderson  v.  Edam,  The,  13  Fed. 

E.   Bergen,    The,    21    Fed.    Cas.    No.  135. 

12526a;    Lamington,   The,    30    C.    C.  '=  E.  U.,  The,  1  Spink  63. 

A.  271,  86  Fed.  675;    Independence,  "Veendam,     The,     46     Fed.     489; 

The,   2  Curt.    (U.    S.)    350,  18   Law  Henry    Steers,    Jr.,    The,    110    Fed. 

R.     151,    13    Fed.    Cas.     No.    7014;  578. 


§§  3353,  3354.]  salvage.  670 

exertion  is  not  necessary  to  establish  a  claim  to  salvage.^  ^  More  than 
one  set  of  salvors  may  contribute  to  the  rescue,  and  all  who  engage 
in  the  enterprise  and  who  materially  contribute  to  the  saving  of  the 
property  are  entitled  to  share  in  the  award  except  in  cases^"^  where 
the  evidence  shows  that  the  services  of  original  salvors  are  sufficient 
to  save  the  property,  and  the  claimant  was  a  mere  volunteer,  whose 
services  were  not  needed  no  salvage  will  be  allowed." 

§  3353.  Burden  of  proof. — The  rule  as  to  burden  of  proof  in  sal- 
vage cases  is  not  essentially  different  from  that  of  other  cases.  The 
burden  is  on  the  claimant  to  establish  by  evidence  such  facts  and 
circumstances  as  will  bring  him  within  the  rule  of  a  salvor.  A  high 
degree  of  proof  is  not  required.  The  claimant  is  not  required  to 
produce  proof  sufficient  to  make  it  certain  that  the  property  was 
saved  by  his  assistance.  The  rule  as  to  the  salvor's  burden  was  thus 
stated  by  Judge  Betts :  "I  am  not  aware  of  any  principle  which  in- 
vests him  with  the  rights  and  privileges  of  a  salvor,  until  it  is  ren- 
dered reasonably  probable  upon  the  evidence  that  his  labor  or  skill 
have  contributed  toward  protecting  property  exposed  to  instant  peril 
at  sea  from  ultimate  loss  or  further  damage."^ ^ 

§  3354.  Essential  elements — Claimant's  proof. — In  order  to  estab- 
lish a  claim  for  salvage  the  proof  must  show  sucli  circumstances  under 
which  the  services  were  rendered  as  will  make  tlie  claim  meritorious 
and  bring  it  within  the  rules  of  a  salvage  enterprise.  To  establish  such 
salvage  enterprise  the  proof  must  generally  show  at  least  six  essential 

"Tolomeo,     The,     7     Fed.     497;  215;    Stone  v.  Jewell,  The,   41  Fed. 

Muntz  V.  Raft  of  Timber,  15  Fed.  103;  Strathnevis,  The,  76  Fed.  855; 

555;    El  Dorado,  The,  50  Fed.  951;  Sabine,  The.  101  U.  S.  384;  Bartley, 

Island   City,   The,   1   Black    (U.   S.)  The,  Swabey  198;   Pride  of  Canada, 

121;   John  Worts,  The,  01c.   (U.  S.)  The,  Brown.  &  Lush.  209;  Flottbek, 

462,'  13  Fed.  Cas.  No.  7434;    Henry  The,  55  C.  C.  A.  448,  118  Fed.  954. 

Ewbank,  The,  1  Sumn.   (U.  S.)   400,  "  Avoca,  The,  39  Fed.  567. 

417;     Samuel,    The,    15    Jur.    407;  ''John  Wurts,   The,  01c.    (U.   S.) 

Jonge  Bastiaan,  5  C.  Rob.  322;    In-  462,  16  Hunt.  Mer.  Mag.  383,  13  Fed. 

dia,   The,   1    W.   Rob.   406;    Albion,  Cas.     No.     7434;      Susan,     The,     1 

The,  Lush.  Adm.  282.  Sprague    (U.   S.)    499,   23   Fed.  Cas. 

'^Blackwall,  The,  10  Wall.  (U.  S.)  No.  13630;    Elphicke  v.  White  Line 

1;     Adams   v.    Island    City,    The,    1  Towing  Co.,  46  C.  C.  A.  56,  106  Fed. 

Cliff.    (U.  S.)    210,  1  Fed.  Cas.   No.  945;  Arthur,  The,  6  L.  T.  N.  S.  556; 

55;    Norris  v.    Island   City,    The,   1  Resultatet,  The,  17  Jur.  353;  British 

Cliff.    (U.  S.)    219,  18  Fed.  Cas.  No.  Empire,  The,  6  Jur.  608. 
1306;    Fanny   Brown,   The,   30   Fed. 


671  claimant's    proof — rescue — IMPENDIXG    PERIL.       [§    3355. 

ingredients:  (1)  Tlie  degree  of  danger  from  which  the  property  was 
rescued;  (2)  the  value  of  the  property  saved,  or  that  it  was  of  great 
value;  (3)  that  the  salvors  and  their  property  incurred  serious  and 
continual  risk  in  the  rescue;  (4)  the  value  of  the  property  used  hf 
the  salvors  in  saving  the  vessel  or  cargo  and  the  danger  or  risk  to 
which  it  was  exposed;  (5)  the  extraordinary  or  unusual  skill  shown 
in  rendering  the  service;  (G)  the  time  and  labor  spent  in  the  enter- 
prise. In  speaking  of  these  one  court  said :  "These  are  t"he  ingredi- 
ents which  must  enter,  each  to  a  greater  or  less  degree,  as  a  sine  qua 
non  into  every  true  salvage  service;  and  to  these  I  will  add,  not  as 
an  ingredient  so  much  as  a  consideration  to  be  taken  into  view :  • 
the  degree  of  success  achieved  and  the  proportions  of  value  lost  and 
saved."^^ 

§  3355.  Rescue — Impending  peril. — From  tlie  definitions  of  sal- 
vage previously  given  it  is  apparent  that  to  entitle  a  vessel  or  crew  to 
salvage  the  proof  must  generally  show  that  the  vessel  or  property  from 
or  out  of  which  the  salvage  is  claimed  was  rescued  from  some  peril  of 
the  sea  under  a  threatened  and  impending  danger  that  would,  from 
all  appearances,  result  in  the  ultimate  destruction  or  loss  of  the  ves- 
sel or  other  property.  The  service  for  which  salvage  is  allowed  is 
said  to  be  "a  service  which  is  voluntarily  rendered  to  a  vessel  need- 
ing assistance,  and  is  designed  to  relieve  her  from  some  distress  or 
danger  either  present  or  to  be  reasonably  apprehended."  It  is  suffi- 
cient if  the  "situation  was  one  of  strong  apprehension  of  immediate 
danger."  The  rule  has  otherwise  been  stated  as  follows:  "It  is  not 
necessary  there  should  be  absolute  danger  to  constitute  a  salvage 
service.  It  is  sufficient  if  there  is  a  state  of  difficulty  and  reasonable 
apprehension.  Neither  is  it  necessary  to  show  that  those  on  board 
either  requested  or  expressly  accepted  the  assistance  if  salvage  serv- 
ices are  rendered  to  a  ship.     It  is  sufficient  if  the  circumstances  are 

« Sandringham,    The,    5    Hughes  (U.  S.)    1;   Flottbek,  The,  55  C.  C. 

(U.  S.)  316, 10  Fed.  556;   Egypt,  The.  A.  448,  118  Fed.  954;  Mary  E.  Dana, 

17  Fed.  359;    Queen  of  the  Pacific,  The,  17  Fed.  353;   Lamington,  The. 

The,  21  Fed.  459;  Rita,  The,  10  C.  C.  30  C.  C.  A.  271,  86  Fed.  675;  Baker. 

A.  629, 62  Fed.  761;  Catalina,  The,  44  The,    25    Fed.    771,    774;    A    Lot    of 

C.    C.    A.    638,    105    Fed.    633;     Ca-  Whalebone,    51     Fed.    916;     Akaba. 

manche,  The,  8  Wall.    (U.  S.)    448;  The,   4   C.   C.  A.   281.    54   Fed.   197; 

Hennessey     v.     Versailles,     The.     1  Cope   v.    Dry    Dock    Co.,    119    U.    S. 

Curt.  (U.  S.)   353,  361.  11  Fed.  Cas.  628,  7  Sup.  Ct.  336. 
No.  6365;   Blackwall,  The,  10  Wall. 


3356.] 


SALVAGE. 


672 


such  that  any  prudent  man  would  have  accepted  an  offer  of  service 
if  it  had  been  made.''^" 

§  3356.  Impending  peril — Degree  of  proof. — The  courts  do  not 
require  a  strong  degree  of  certainty  in  the  proof  establishing  the 
peril ;  it  is  not  necessary  that  the  proof  rise  to  a  degree  of  probability. 
Salvage  services  cannot  be  made  to  rest  on  a  certain  basis,  and  nice 
distinctions  as  to  the  ultimate  probability  of  the  vessel  being  saved 
are  not  to  be  tolerated.  It  is  sufficient  if  there  is  a  probability,  or,  it 
seems,  even  a  possibility  that  the  peril  would  result  in  destruction  if 
the  service  had  not  been  rendered.  The  rule  on  this  subject  is  thus 
stated  by  one  federal  court :  "Now,  it  is  not  necessary  to  constitute  a 
salvage  service  that  the  danger  be  immediate  or  absolute ;  it  is  sufficient 
that  at  the  time  the  assistance  is  rendered  the  sliip  has  encountered  any 
danger  or  misfortune  which  might  possibly  expose  her  to  destruction 
if  the  service  were  not  rendered.  A  situation  of  actual  apprehension, 
though  not  of  actual  danger,  is  sufficient."^^ 


^'Mira  A.  Pratt,  The,  31  Fed.  572; 
Emulous,  The,  1  Sumn.  (U.  S.)  207, 

8  Fed.  Cas.  No.  4480;  McConnochie 
V.  Kerr,  9  Fed.  50;  Long  v.  Tam- 
pico.  The,  16  Fed.  491;  Baker  &c. 
Co.  v.  Excelsior,  The,  19  Fed.  436; 
Fannie  Brown,  The,  30  Fed.  215; 
Wasp,  The,  34  Fed.  222;  Erin,  The, 
36  Fed.  712;  Cachemire,  The,  38 
Fed.  518;  S.  A.  Rudolph,  The,  39 
Fed.  331;  Albany,  The,  42  Fed.  64; 
New  England  &c.  Co.  v.  M.  Vander- 
cook.  The,  45  Fed.  262;  Excelsior, 
The,  48  Fed.  749;  Sirius,  The,  53 
Fed.  611;  Barnegat,  The,  55  Fed. 
92;  Dupuy  de  Lome,  The,  55  Fed. 
93;  Compagnie  Commerciale  De 
Transport  &c.  v.  Charente  &c.   Co., 

9  C.  C.  A.  292,  60  Fed.  921;  Rescue, 
The,  v.  George  B.  Roberts,  The,  64 
Fed.  139;  Beaconsfield,  The,  67  Fed. 
144;  Great  Northern,  The,  72  Fed. 
678;  George  W.  Clyde,  The,  80  Fed. 
157;  Carrie,  The,  88  Fed.  983; 
Thornley,  The,  39  C.  C.  A.  248,  98 
Fed.  735;  Flottbek,  The,  55  C.  C. 
A.  448,  118  Fed.  954;   Independence, 


The,  2  Curt.  (U.  S.)  350,  18  Law 
R.  151,  13  Fed.  Cas.  No.  7014;  John 
Gilpin,  The,  01c.  (U.  S.)  77,  13  Fed. 
Cas.  No.  7345;  Baker  v.  Hemenway, 
2  Low.  (U.  S.)  501,  2  Fed.  Cas.  No. 
770;  Cheeseman  v.  Two  Ferry 
Boats,  2  Bond  (U.  S.)  363,  5  Fed. 
Cas.  No.  2633;  Hyderabad,  The,  11 
Fed.  749,  755;  Ann  L.  Lockwood, 
The,  37  Fed.  233,  237;  Ida  L.  How- 
ard, The,  1  Low.  (U.  S.)  2,  12  Fed. 
Cas.  No.  6999;  Charlotte,  The,  3  W. 
Rob.  68. 

='Saragossa,  The,  1  Ben.  (U.  S.) 
551,  21  Fed.  Cas.  No.  12334;  Holmes 
V.  Joseph  C.  Griggs,  The,  1  Ben. 
(U.  S.)  81,  12  Fed.  Cas.  No.  6640; 
Ella  Constance,  The,  33  L.  J.  N.  S. 
191;  Plymouth  Rock,  The,  9  Fed. 
413;  McConnochie  v.  Kerr,  9  Fed. 
50;  Charlotte,  The,  3  W.  Rob.  68; 
Westminster.  The,  1  W.  Rob.  229, 
232;  Raikes,  The,  1  Hagg.  Adm. 
246;  Phantom,  The,  1  A.  &  E.  58. 
See  also  Cottage  City,  The.  136  Fed. 
496. 


673  DERELICT  PROPERTY.         [§§  3357,  3358. 

§  3357.  Derelict  property. — A  vessel  is  said  to  be  derelict  when  it 
is  found  on  the  seas  forsaken  and  without  any  person  in  it.  To  an- 
swer to  this  definition  the  vessel  must  have  been  abandoned  by  its 
officers  and  crew  without  an  intention  of  returning.  When  found 
in  such  condition  it  is  the  proper  subject  of  salvage  relief.  The 
abandonment  must  ordinarily  have  been  on  some  good,  or  apparently 
good,  grounds  and  the  proof  must  show  in  all  such  cases  that  the  vessel 
was  in  great  danger  or  imminent  peril,  and  that  the  abandonment  by 
the  persons  in  charge  was  for  the  purpose  of  saving  their  lives.  In  such 
cases  it  is  not  required  to  prove  that  the  master  had  no  intention  of  re- 
turning to  the  vessel  at  any  time ;  it  is  sufficient  to  show  that  the  master 
and  the  crew  abandoned  the  vessel  on  account  of  the  imminent  peril 
and  danger  to  life  and  did  not  intend  to  return  under  the  existing  con- 
ditions, and  that  they  did  not  contemplate  returning  to  use  their 
own  exertions  in  further  attempts  at  the  time  to  save  the  vessel. 
The  master's  intention  to  return  in  case  he  cannot  obtain  assistance 
to  save  the  vessel  does  not  take  away  from  it  the  legal  character  of 
derelict.^-  On  this  definition  one  court  said :  "There  is  some 
vagueness  about  the  definition  of  'derelict'  when  applied  to  vessels 
abandoned  at  sea,  but  the  general  rule  is  that  a  vessel  which  is  aban- 
doned by  her  crew,  without  any  purpose  on  their  part  of  returning 
to  the  ship,  or  any  hope  of  recovering  it  by  their  own  exertions,  comes 
strictly  within  the  definition."^^ 

§  3358.  Derelict  property — Duty  of  finder. — "Where  property  is 
discovered  which  is  derelict  it  is  the  right  and  the  duty  of  the  finder 
to  take  possession  and  make  every  reasonable  effort  to  preserve  it 
for  the  owner's  benefit,  with  the  object  of  salvage  compensation.  This 
right  of  the  finder  is  thus  stated :  "The  fact  that  property  is  found 
at  sea  or  on  the  coast  in  peril,  without  the  presence  of  any  one  to  pro- 
tect it,  gives  the  finder  a  right  to  take  it  in  his  possession ;  and  the 
law  connects  with  such  right  the  obligation  to  use  the  means  he-  has 
at  control,  and  with  all  reasonable  promptitude,  to  save  it  for  the 
owner."-*     It  has  been  stated  that  "property  is  not,  in  the  sense  of 

=2Rowe  V.  Brig,  The,  1  Mason  (U.  Fed.  920;  Bee,  The,  1  Ware  (U.  S.) 

S.)    372;    Laura,  The,  14  Wall.    (U.  332,   3   Fed.   Cas.   No.   1219;    Craigs. 

S.)  336;   John  Wurts,  The,  01c.   (U.  The,  L.  R.  5  P.  D.  186. 

S.)  462,  13  Fed.  Cas.  No.  7434;  Fair-  -'2    Parson    Shipp.    &   Adm.    288; 

field.  The,  30  Fed.  700;  Cairnsmore,  Ann  L.  Lockwood,  The,  37  Fed.  233. 

The,  20  Fed.  519;   Burlington,  The,  =Mohn   Wurts,  The,   01c.    (U.   S.) 

73    Fed.    258;    B.    C.   Terry,    The.    9  462,  13  Fed.  Cas.  No.  7434. 
Vol.  4  Elliott  Ev.-43 


§    3359.]  ':  SALVAGE.  674 

law,  derelict,  and -the  possession  left  vacant  for  the  finder,  until  the 
spes  recuperandi  is  gone  and  the  animus  revertendi  is  finally  given, 
up."" 

§  3359.  Towage  as  salvage. — The  courts  have  made  a  distinction 
between  towage  as  such  and  towage  as  salvage.  The  difference  seems 
to  depend  on  the  proof  of  the  situation  of  the  vessel  towed  at  the  time 
such  service  is  undertaken.  Towage  service  as  such  is  that  which  is 
rendered  for  the  mere  purpose  of  expediting  the  voyage  of  the  vessel, 
without  reference  to  any  circumstances  of  danger.  It  is  confined  to 
vessels  that  have  received  no  injury.  The  compensation  for  towage 
is  payable  where  the  vessel  receiving  the  service  is  in  the  same  con- 
dition she  would  ordinarily  be  in  without  having  encountered  any 
dangers  or  accidents.  "It  is  the  employment  of  one  vessel  to  ex- 
pedite the  voyage  of  another."^®  But  towage  as  salvage,  assuming  that 
this  is  a  correct  nautical  term,  is  different  from  mere  towage  as  such. 
In  this  sense  it  is  simply  salvage  service,  \\liether  the  persons  per- 
forming such  service  are  to  be  paid  by  a  salvage  compensation  de- 
pends upon  the  proof  of  the  circumstances  under  which  such  ser- 
vices were  performed.  The  correct  rule  is  stated  as  follows :  "^^^len 
towage,  therefore,  is  rendered  to  a  disabled  vessel,  not  with  a  view 
merely  to  expedite  her  passage  from  one  place  of  safety  to  another, 
but  with  the  obvious  purpose  of  relief  from  some  circumstances  of 
danger,  either  present  or  reasonably  to  be  apprehended,  compensa- 
tion upon  salvage  principles  is  to  be  allowed."  And  as  in  salvage 
cases  generally,  the  application  of  the  principle  is  not  dependent  upon 
the  degree  of  danger,  although  this  is  important  in  fixing  the  amount 
of  compensation.^'^     And  it  has  been  held  that  an  agreement  to  tow 

^Aquila,   The,   1   C.   Rob.   37,   41;  3    Fed.   248;    Ehrman   v.    Swiftsure, 

Ann  L.  Lockwood,  The,  37  Fed.  233.  The,    4    Fed.    463;    Leipsic,    The,    5 

==«  Princess  Alice,  The,  3  W.  Rob.  Fed.    108;    Atlas   &c.    Co.    v.    Colon^ 

138;    Reward,  The,   1  W.   Rob.   174,  The,    4    Fed.    469;    Saragossa,    The, 

177;    McConnochie  v.   Kerr,   9   Fed.  1     Ben.     (U.     S.)     551;     Emily     B. 

50;    Plymouth    Rock,    The,    9    Fed.  Souder,    The,    15    Blatchf.    (U.    S.) 

413;  Sirius,  The,  53  Fed.  611;  Great  185,  8  Fed.  Cas.  No.  4458;    Hennes- 

Northern,  The,  72  Fed.  678.  sey  v.  Versailles,  The,  1  Curt.    (U. 

="  Plymouth    Rock,    The,    9    Fed.  S.)     353,    11    Fed.    Cas.    No.    6365; 

413;     Corwin    v.     Jonathan    Chase,  Sirius,   The,   53   Fed.   611;    Reward, 

The,  2  Fed.  268;   Brooks  v.  Adiron-  The,  1  W.  Rob.  174;  Charlotte,  The, 

dack.    The,    2    Fed.    387;     Mayo    v.  3   W.  Rob.   71;    Monticello,   The,  81 

Clark,   1   Fed.   735;    Athenian.   The,  Fed.  211. 


675  AMOUNT    OF   SALVAGE.  [§    3360. 

an  imperiled  vessel  into  port  did  not  change  the  character  of  the 
service  rendered  from  salvage  to  that  of  towage.-® 

§  3360.  Amount  of  salvage — Circumstances  control. — There  are 
no  fixed  rules  for  estimating  the  amount  of  salvage  or  compensation 
in  any  given  case.  This  depends  on  all  the  circumstances  involved 
in  the  service,  and  is  largely  in  the  discretion  of  the  court.  The  proof 
should  show  all  facts  and  circumstances  that  may  in  any  degree 
bear  upon  the  question.  Admiralty  courts  have  frequently  indi- 
cated the  various  circumstances  which  are  proper  to  be  considered  in 
estimating  the  amount  of  salvage,  and  these  constitute  the  only  rules 
capable  of  statement  as  guides.  Of  these  the  important  or  leading 
circumstances  are  the  value  of  the  property  saved,  the  degree  and 
imminence  of  the  danger,  the  proximity  of  other  means  of  succor, 
the  hazard,  labor  and  skill  of  the  salvors,  the  duration  and  difUcU'lty 
of  the  service,  the  value  of  the  vessel  or  vessels  and  property  and  the 
number  of  persons  employed,  and  the  danger  to  vessel  and  men  in 
rendering  the  service,  and  in  some  cases  the  fact  that  the  vessel 
was  required  to  deviate  from  her  voyage,  together  with  the  inci- 
dental risks  and  responsibilities  thereby  incurred.-®  In  harbor 
cases  where  a  large  number  of  tugs  are  near,  large  salvage  awards 
are  contrary  to  the  principles  of  law;''"  but  the  importance  of  main- 
taining wrecking  companies  Avith  powerful  and  costly  appliances, 
ready  at  any  time,  day  or  night,  to  aid  vessels  in  peril,  is  an  ele- 
ment to  be  considered. ^^  It  is  held  that  the  salvors  are  entitled  tO' 
a  large  per  cent,  where  the  value  of  the  salved  vessel  is  small. ^-   Where- 

=»  Dupuy  de  Lome,  55  Fed.  93.    See  v.  Versailles,  The,  1  Curt.    (U.  S.) 

also,  Sirius,  The,  6  C.  C.  A.  614,  57  353,  11  Fed.  Cas.  No.  6365;   Pope  v. 

Fed.  851.  Sapphire,    The.    19    Fed.    Cas.    No. 

=»  Plymouth    Rock,    The,    9    Fed.  11276;    Hand   v.  Elvira.   The,   Gilp. 

413;     Sandringham,    The,    10    Fed.  (U.  S.)   60,  11  Fed.  Cas.  No.  6015; 

556;  Murphy  v.  Siiliote,  The,  5  Fed.  Grace    Dollar,    The,   103    Fed.    665; 

99;  Annie  Henderson,  15  Fed.  550;  Clifton,  The,  3  Hagg.  Adm.  117. 

Neto  and  Cargo,  The,  15  Fed.  819;  '"Murphy  v.  Suliote,  The,  5  Fed. 

Egypt,     The,     17     Fed.     359,     367;  99;    O.    C.    Hanchett,    The,    76    Fed. 

Queen  of  the  Pacific,  The,  21  Fed.  459,  1003. 

25  Fed.  610;  Baker,  The,  25  Fed.  771;  "' Susan,  The,  1  Sprague    (U.  S.) 

Boyne,   The,    98    Fed.    444;    Bay   of  499,  23   Fed.  Cas.  No.  13630;    Coast 

Naples,    The,   44    Fed.    90,    48    Fed.  Wrecking  Co.   v.   Phoenix   Ins.   Co., 

737;    Bowers  v.  European,  The,   44  13   Fed.   127;    Egypt.   The,   17   Fed. 

Fed.  484;   A  Lot  of  Whalebone,  51  359;    City    of    Worcester,    The,    42 

Fed.  916;   Blackwall,  The,  10  Wall.  Fed.  913.  916;   St.  Paul,  The,  30  C. 

(U.  S.)  1;   Connemara,  The,  108  U.  C.  A.  70,  82  Fed.  104.  86  Fed.  340. 

S.  352,  2  Sup.  Ct.  754;   Hennessey  «=  Wellington,   The.   52   Fed.    605; 


§   3361.]  SALVAGE.  676 

a  large  amount  of  property  is  saved  its  exact  value  is  a  minor  element 
in  fixing  salvage ;  and  as  the  value  increases  the  per  cent,  given  rapidly 
decreased.^^  "The  absence  of  other  assistants  is  an  important  ele- 
ment, and  should  be  taken  into  account  in  ascertaining  the  amount 
of  a  salvage  award.'"^^  Where  the  amount  of  salvage  might  be  in- 
creased by  the  dangers  encountered  by  the  salvors,  as  against  this  it 
is  proper  to  consider  the  fact  that  a  life  saving  crew  was  at  hand 
ready  to  effect  a  rescue  in  case  of  accident. ^^  Injuries  received  in 
the  course  of  salvage  service  is  proper  to  be  considered  in  determin- 
ing the  amount  of  the  award. ^'^  "The  promptness  of  salvors  in  reach- 
ing the  steamer  and  thus  preventing  her  going  further  up  the  beach, 
and  in  getting  everything  in  readiness  to  haul  her  off  at  the  first 
possible  opportunity,  and  thus  avoiding  the  great  damage  incident 
to  long  continued  grounding,  is  a  most  important  element  in  this 
case."^''  Where  a  vessel  is  helplessly  drifting  towards  others,  which 
there  is  an  apparent  probability  she  will  injure,  and  is  rescued  by 
salvors,  the  saving  to  the  vessel  or  owners  from  the  probable  conse- 
quences is  a  proper  element  to  be  considered  in  fixing  the  amount 
of  salvage.^^ 

§  3361.  Agreement  for  salvage  services — Effect. — The  courts  are 
not  unanimous  on  the  effect  of  agreements  for  salvage  services.  In 
some  instances  the  courts  utterly  ignore  them;  in  others  they  accept 
the  sum  agreed  upon  as  a  measure  of  compensation  for  the  salvor's 
services;  while  in  others  it  operates  as  a  bar  to  a  claim  for  salvage. 
The  claim  for  salvage  does  not  rest  upon  an  agreement  either  express 
or  implied.  In  the  absence  of  proof  of  an  express  contract,  or  proof 
of  circumstances  from  which  a  contract  could  be  implied  the  pre- 
sumption of  law  is  that  the  salvage  enterprise  was  undertaken  with 
the  expectation  that  salvage  would  be  paid  in  the  regular  and  usual 
way  out  of  the  property  saved.^"     As  previously  seen,  compensation 

Gambetta,  The,  20  C.  C.  A.  417,  74  «  Haxby,  The,  28  C.   C.  A.  33,  83 

Fed.  259.  Fed.  715. 

«Rita,   The,   10   C.   C.   A.   629,   62  ^  Haxby,  The,   28  C.  C.  A.  33,  83 

Fed.  761;   Gambetta,  The,   20  C.  C.  Fed.  715. 

A.  417,  74  Fed.  259.  '"'  St.   Paul,   The,   82   Fed.   104,   86 

^'Boyne,    The,    98    Fed.   444;    Ro-  Fed.   340;    City  of  Worcester,   The, 

man    Prince,     The,     88     Fed.     336;  42  Fed.  913. 

Monticello,   The,   81   Fed.   211,   214;  =«  Stebbins  v.  Five  Mud  Scows,  50 

O.    C.    Hanchett,    The,    22    C.    C.    A.  Fed.  227. 

678,    76    Fed.    1003;    Indiana,    The,  =^  Queen   of   the   Pacific,    The,    21 

22  Fed.  925.  Fed.  459. 


677  AGREEMENT.  [§§  33G2,  3303, 

or  salvage  depends  on  the  success  of  the  salvage  enterprise ;  but  under 
a  valid  contract  salvage  may  be  decreed  where  the  proof  shows  that 
the  venture  was  not  successful.  The  rule  established  by  an  English 
court  is  that  "when  the  services  are  rendered  in  pursuance  of  a  re- 
quest from  the  vessel  in  danger  or  distress,  the  party  rendering 
them  is  entitled  to  recover  salvage,  according  to  the  circumstances 
of  the  case,  although  such  services  prove  to  be  of  no  benefit,  while 
one  who  volunteers  his- services  to  a  vessel  under  the  same  circum- 
stances, if  unsuccessful,  is  entitled  to  nothing.  But  in  either  case 
the  law  implies  that  the  service  is  to  be  paid  on  the  usual  condition 
of  the  ultimate  safety  of  the  property  in  question."*"  It  has  been 
stated  that  "nothing  short  of  a  distinct  agreement  to  pay  the  stipu- 
lated sum,  whether  the  service  be  successful  or  not,  will  change  the 
character  of  a  salvage  service  into  a  mere  ordinary  contract  of  employ- 
ment, or  deprive  it  of  its  maritime  lien."" 

§  3362.  Agreement — Effect  as  a  measure  for  amount  of  salvage. 
On  the  validity  and  effect  of  salvage  contracts  one  district  judge 
said :  "It  is  true,  as  insisted  by  the  respondent's  counsel,  that  a  con- 
tract of  this  character  is  not  binding  upon  the  court,  and  that  in  all 
cases  of  salvage  it  is  competent  for  the  court  to  adjudge  and  assess 
the  amount  of  the  recovery  in  accordance  with  the  equities  of  the 
case;  and,  if  it  should  appear  that  a  contract  of  this  character  was 
an  inequitable  one,  the  court  would,  of  course,  disregard  it.  But 
whenever  a  contract  has  been  entered  into  after  due  deliberation  by 
the  parties,  and  has  not  been  shown  to  be  in  any  respect  an  inequit- 
able one,  it  is  exceedingly  valuable  as  evidence  to  enable  the  court 
to  arrive  at  a  just  determination.  The  court  regards  this  contract 
as  evidence  in  that  light,  and  not  as  a  conclusive  contract,  but  it  is 
a  most  significant  and  valuable  indication  of  what  should  be  the  true 
amount  of  the  recovery."*^ 

§  3363.  Agreement  valid — A  bar  to  salvage  claim. — The  general 
principle  is  that  if  the  proof  shows  a  definite,  distinct  agreement, 

*« Undaunted,  The,  Lush.  Adm.  90;  295;    Camanche.   The,    8   Wall.    (U. 

Hennessey    v.    Versailles,     The,     1  S.)   448,  477. 

Curt.    (U-   S.)    353,   360;    Queen   of  "Agnes  I.  Grace,  2  C.  C.  A.  581, 

the  Pacific,  The,  21  Fed.  459.  49  Fed.  662,  51  Fed.  958;   Thonley, 

"Chapman  v.  Engines  of   Green-  The.  39  C.  C.  A.  248,  98  Fed.  735: 

point,  38  Fed.  671 ;   Adams  v.  Bark  Blfrida.  The,  172  U.  S.  186,  19  Sup. 

Island   City,   1    Cliff.    (U.    S.)    210:  Ct.  186. 
Louisa  Jane,  The,  2  Low.    (U.  S.) 


§  ;33G4.] 


SALVAGE. 


678 


with  ample  time  for  the  parties  to  consider  their  acts,  and  where 
it  is  not  totally  contrary  to  justice  or  equity,  the  courts  will  recog- 
nize such  an  agreement/^  In  sueli  eases  where  the  proof  shows  that 
a  binding  contract  was  made  between  the  parties  to  pay  for  the  ser- 
vices at  all  events,  whether  tlie  property  was  lost  or  not,  it  has  been 
held  sufficient  to  bar  a  claim  for  salvage." 

§  3364.  Agreement  invalid — Evidence  of  need  of  aid. — The  reason 
for  courts  declining  to  be  bound  by  an  agreement  for  salvage  is  that 
such  agreements  are  usually  made  when  one  of  the  parties  is  in  ex- 
tremis, and  that  however  fair  the  agreement  may  appear  the  mari- 
time law  recognizes  that  the  necessity  of  immediate  action  may  com- 
pel submission  to  a  demand  which  would  not  otherwise  be  given. 
The  objection  is  not  answered  by  the  suggestion  that  no  advantage 
was  taken  on  account  of  the  position  in  which  one  contracting  party 


*^Post  V.  Jones,  19  How.  (U.  S.) 
150;  J.  G.  Paint,  The,  1  Ben.  (U. 
S.)  545,  13  Fed.  Cas.  No.  7318; 
Wellington,  The,  48  Fed.  475,  478; 
Agnes  I.  Grace,  The,  2  C.  C.  A.  581, 
51  Fed.  958;  Sirius,  The,  53  Fed. 
611  (reversed  in  57  Fed.  851); 
Thornley,  The,  39  C.  C.  A.  248, 
98  Fed.  735;  Costa  Rica,  The,  3 
Sawy.    (U,  S.)   610;    Emulous,  The, 

I  Sumn.  (U.  S.)  207,  8  Fed.  Cas.  No. 
4480;  Bearse  v.  Three  Hundred 
and  Forty  Pigs  Copper,  1  Story  (U. 
S.)  314,  2  Fed.  Cas.  No.  1193;  G.  W. 
Jones,  The,  48  Fed.  925;  A.  D. 
Patchin,  The,  1  Blatchf.  (U.  S.) 
414,  1  Fed.  Cas.  No.  87;  Inde- 
pendence, The,  2  Curt.  (U.  S.)  350, 
13  Fed.  Cas.  No.  7014;  Alert,  The, 
56  Fed.  721;  British  Empire,  The, 
6  Jur.  608;  Helen  and  George,  The, 
Swabey  368;  True  Blue,  The,  2  W. 
Rob.  176;  Henry,  The,  2  Eng.  Law 
&  Eq.  564. 

« Adams  v.  Island  City,  The,  1 
Cliff.  (U.  S.)  210,  1  Fed.  Cas.  No. 
55;  Centurion,  The,  1  Ware  (U.  S.) 
477,  5  Fed.  Cas.  No.  2554;  H.  B. 
Foster,  The,  Abb.  Adm.  (U.  S.)  222, 

II  Fed.   Cas.   No.   6290;    Versailles, 


The,  28  Fed.  Cas.  No.  16924;  Coffin 
V.  John  Shaw.  The,  1  Cliff.  (U.  S.) 
230,  5  Fed.  Cas.  No.  2949;  Collins 
V.  Fort  Wayne,  The,  1  Bond  (U.  S.) 
476,  6  Fed.  Cas.  No.  3012;  Bowley 
V.  Goddard,  1  Low.  (U.  S.)  154,  3 
Fed.  Cas.  No.  1736;  Louisa  Jane, 
The,  2  Low.  (U.  S.)  295,  15  Fed. 
Cas.  No.  8532;  Harley  v.  Four  Hun- 
dred and  Sixty-seven  Bars,  etc.,  1 
Sawy.  (U.  S.)  1,  11  Fed.  Cas.  No. 
6069;  Marquette,  The,  1  Bro.  Adm. 
(U.  S.)  364,  16  Fed.  Cas.  No.  9101; 
Silver  Spray,  The.  1  Bro.  Adm.  (U. 
S.)  349.  22  Fed.  Cas.  No.  12857; 
Williams,  The,  1  Bro.  Adm.  (U.  S.) 
208,  29  Fed.  Cas.  No.  17710;  Inde- 
pendence, The,  2  Curt.  (U.  S.)  350, 
18  Law  R.  151,  13  Fed.  Cas.  No. 
7014;  William  Lushington,  The,  7 
Notes  of  Cases  361;  Emulous.  The, 
1  Sumn.  (U.  S.)  207.  8  Fed.  Cas. 
No.  4480;  Post  v.  Jones.  19  How. 
(U.  S.)  150;  Camanche,  The,  8  Wall. 
(U.  S.)  448;  Elfrida,  The,  172  U.  S. 
186,  19  Sup.  Ct.  146;  Delambre, 
The,  9  Fed.  775;  Roanoke.  The,  50 
Fed.  574;  Elphicke  v.  White  Line 
&c.  Co.,  46  C.  C.  A.  56,  106  Fed.  945; 
Helen  &  George,  The,  Swabey  368. 


679  AGREEMENT — UUltUKX    OF    PROOF.       [^§    SoG-"),    3:5GG. 

is  placed,  as  that  position  is  the  very  foundation  of  the  contract.  It 
is  evident  that  such  contracts  are  not  voluntary  on  the  part  of  the 
owner  or  master  of  a  ship.  In  such  cases  the  rule  has  been  estab- 
lished that  "the  amount  agreed  to  by  the  master  cannot  be  accepted 
as  the  measure  of  value  of  the  services  rendered,  although  tlie  mak- 
ing of  tlie  contract  may  be  considered  as  evidence  of  the  great  need 
of  it,  and  the  master's  opinion  of  the  immediate  necessity  of  it."*^ 
But  the  courts  refuse  to  recognize  them  as  binding  agreements  in 
other  respects.** 

§  3365.  Agreement — Burden  of  proof. — Where  a  claim  is  made 
for  aiding  a  vessel  in  distress  or  for  rescuing  imperiled  property  at 
sea,  naturally  and  ordinarily  compensation  is  made  in  the  way  of 
salvage,  the  amount  being  determined  by  the  court.  Courts  assume 
that  all  salvage  services  were  undertaken  on  this  presumption.  If 
either  party  claims  a  different  arrangement  it  is  incumbent  upon 
him  to  plead  it  specifically  and  the  burden  is  upon  him  to  prove  it 
hy  a  preponderance  of  the  evidence.*^  It  is  never  necessary  to  prove 
that  the  master  obtained  special  authority  in  order  to  secure  the  ser- 
vices of  salvors,  as  usually  the  circumstances  do  not  admit  of  any 
delay,  and  his  agency  clothes  him  with  such  authority.*^ 

§'  3366.  Claim  for  salvage — Forfeiture. — Salvage  services  may  be 
Tendered  under  such  circumstances  that  will  prevent  the  salvors  from 
recovering.  And  a  valid  claim  for  salvage  may  be  forfeited  by  the 
conduct  of  the  salvors.  Thus,  under  the  first  principle  where  the 
proof  shows  that  the  injury  was  caused  or  the  peril  brought  about 
by  the  fault  of  the  claimant,  no  salvage  will  be  allowed.*"     And 

« Tennasserim,  The,   47  Fed.  119.  495;    Helen  and  George.  The,   Swa- 

*»  Jacob  E.    Ridgway,   8   Ben.    (U.  bey   368;    J.   G.   Paint,   The,   1   Ben. 

S.)     179,    13    Fed.    Gas.    No.    7155;  (U.  S.)   545,  13  Fed.  Gas.  No.  7318; 

Brooks  V.  Adirondack,  The,  2  Fed.  Don     Garlos,     The,     47     Fed.     746; 

387;  Ghapman  v.  Engines  of  Green-  Thornley,  The,  39  G.  G.  A.   248,  98 

point,   38   Fed.   671;    A.  D.   Patchin,  Fed.  735. 

The,     1     Blatchf.     (U.    S.)     414,     1  *' Elphicke  v.  White  Line  &c.  Go., 

Fed.     Gas.     No.     87;     Jenny     Lind,  46   G.   G.  A.   56,    106   Fed.   945;    Ga- 

The,    Newb.    Adm.    443;     Emulous,  manche.  The.  8  Wall.  (U.  S.)  448. 

The'     1     Sumn.      (U.     S.)      207,     8  '' A.   D.   Patchin,   The,   1   Blatchf. 

Fed.    Gas.    No.    4480;    G.   W.   Jones,  (U.  S.)   414,  1  Fed.  Gas.  No.  87;   G. 

The,  48  Fed.  925;   Wexford,  The,  6  W.   Jones,  The,   48  Fed.  925;    Mira 

Ben'.    (U.  S.)    119,  29  Fed.  Gas.  No.  A.  Pratt,  The,  31  Fed.  572. 

17472;  Homely,  The.  8  Ben.  (U.  S.) 


33G6.]  SALVAGE. 


G80 


under  this  principle  it  was  held  that  where  a  hreach  of  a  contract 
contributed  to  place  the  salved  vessel  in  danger  and  peril,  no  com- 
pensation could  be  allowed.'^''  So  it  has  been  held  that  the  lack  of 
skillful  operation  with  or  without  injurious  result  may  diminish 
the  reward,  and  "specific  negligence  approximately  resulting  in  dis- 
tinguishable injury  to  the  vessel  may  be  used  in  an  action  for  sal- 
vage either  to  diminish  or  defeat  compensation  and  in  an  action  by 
the  owners  of  the  property,  when  culpable  negligence  is  established 
ag-ainst  the  salvors,  resulting  in  injury,  damages  therefor  may  be  re- 
covered against  him."^^  And  it  has  been  held  that  injury  to  the  salved 
vessel  during  the  attempt  to  save  it  may  diminish  the  award  in  the 
absence  of  any  proof  of  negligence.^^ 

"  Samuel    H.    Crawford,     The,    6  Duke  of  Manchester,  The,  2  W.  Rob. 

Fed.   906;    Chas.   E.   Soper,  The,   19  470;  Neptune.  The,  1  W.  Rob.  297. 

Fed.  844;  Minnie  C.  Taylor,  The,  52  "  Haxby,  The,  28  C.  C.  A.  33,  83 

pg(j    323.  Fed.    715;    Bremen,    The,    111    Fed. 

■^"Krona,  The,  28  Fed.  318.  228;  Pine  Forest,  The,  119  Fed.  999; 

"  Henry'  Steers,  Jr.,  The,  110  Fed.  Merritt   &c.    Co.    v.    North    German 

578;  Mulhouse,  The,  22  Law  R.  276,  Lloyd,  120  Fed.  17.     For  a  review  of 

17   Fed.   Cas.   No.   9910;    Serviss   v.  cases  as  to  salvage  wards  and  their 

Ferguson,  28  C.  C.  A.  327,  84  Fed.  amount,   in   the   federal   courts,   see 

202;     Alg'itha,    The,    17    Fed.    551;  Theta,    The,   135   Fed.   129;    note   to 

Dygden,  The,  1  Notes  of  Cases  115;  Lamington,  The,  30  C.  C.  A.  280. 
Cape  Packet,  The,  3  W.  Rob.  122; 


CHAPTEE  CLXVII. 


COLLISIONS. 


Sec. 

3367.  Burden  of  proof. 

3368.  Inscrutable  fault — Rule. 

3369.  Inevitable  accident. 

3370.  Presumption  of  fault. 

3371.  Complaining  vessel  at  fault — 

Degree  and  burden  of  proof. 

3372.  Both    vessels    at    fault — Divi- 

sion of  damages. 

3373.  Comparative   fault —  Division 

of  damages. 

3374.  Both    vessels    at    fault — Dam- 

age to  third. 

3375.  Violating      statutory      duty — 

Burden  of  proof. 

3376.  Violating     maritime     laws  — 

Justification. 

3377.  Steamer  must  keep  out  of  way 

— Burden  of  proof. 

3378.  Steamer  and   sailing  vessel — 

Prima  facie  liability. 

3379.  Collision    with    vessel    at    an- 

chor—  Burden    and     prima 
facie  case. 

3380.  Absence    of    lookout  —  Prima 

facie  case. 


Sec. 

3381.  Absence  of  lookout —  Burden 

of  proof. 

3382.  Burden  on  vessel  having  wind 

free. 

3383.  Vessel     adrift  — Burden     and 

presumption. 

3384.  Towing    vessel — Liability    for 

collision  with  towed  vessel. 

3385.  Collision  in  fog. 

3386.  Rate  of  speed  during  fog. 

3387.  Collision    in    fog — Burden    of 

proof  and  prima  facie  case. 

3388.  Rule   as  to   moderate   rate   of 

speed. 

3389.  Moderate     speed  —  Criterion 

and  burden. 

3390.  Proof  of  speed  not  conclusive 

evidence  of  negligence. 

3391.  Mutual  negligence. 

3392.  Contributory   negligence    does 

not  prevent  recovery. 

3393.  Contributory    negligence    does 

not  prevent  recovery  —  Ex- 
ceptions. 

3394.  What  damages   recoverable. 

3395.  Proof  of  usage. 


§  3367.  Burden  of  proof. — The  general  rule  on  the  question  of 
the  burden  of  proof  applies  in  admiralty  in  cases  of  collision.  In  this 
class  of  cases  no  presumptions  arise  from  the  fact  of  the  accident  in 
the  absence  of  evidence  showing  a  violation  of  statute  or  of  the  rules 
of  maritime  law.  The  rule,  therefore,  is  that  when  a  libelant  alleges 
that  there  was  a  collision  and  that  his  vessel  suffered  damages  by  rea- 
son thereof,  the  burden  of  proof  is  upon  him  to  show  by  a  fair  pre- 
ponderance of  the  evidence  that  the  collision  happened  substantially 

681 


§  3368.]  COLLi.sioxs.  082 

as  alleged  and  that  it  was  the  cause  of  the  injury.^  The  rule  in  admi- 
ralty is  the  same  as  that  at  common  law,  that  tlie  plaintiff  must  make 
out  his  case  by  a  preponderance  of  the  evidence ;  and  if  he  leaves  the 
question  of  fault  or  negligence  in  doubt,  he  is  not  entitled  to  recover.^ 
This  rule  as  to  the  burden  of  proof  is  carried  to  the  extent  of  holding 
that  if  the  evidence  leaves  a  reasonable  doubt  as  to  which  vessel  was 
in  fault,  the  loss  must  be  sustained  by  the  party  on  whom  it  has 
fallen.^ 

§  3368.  Inscrutable  fault — Rule. — Under  the  decisions  of  the 
courts  and  the  rules  of  admiralty  tliere  are  cases  of  collision  that 
come  under  the  rule  designated  as  that  of  inscrutable  fault.  This 
term  was  thus  defined :  "Cases  of  inscrutable  fault  are  those  wherein 
the  court  can  see  that  a  fault  has  been  committed,  but  is  unable,  from 
the  conflict  of  testimony  or  otherwise,  to  locate  it."  The  earlier  cases 
and  some  of  the  law  writers  made  no  distinction  between  cases  of 
mutual  fault,  inscrutable  fault,  and  inscrutable  accident;  and  under 
the  rule  thus  established  the  damages  were  divided  in  all  cases  where 
the  proof  showed  that  the  collision  was  not  the  fault  of  one  party 
only.    And  this  rule  has  been  adopted  by  some  courts  in  this  country.^ 

1  Bergen  v.  Joseph  Stickney,  The,  of  New  York,  The,  147  U.  S.  72,  13 

1  Fed.  624;  Middlesex  &c.  Co.  v.  Sup.  Ct.  211;  Catherine  of  Dover, 
Albert  Mason,  The,  2  Fed.  821;  2  Hagg.  Adm.  145,  154;  Rockaway, 
Amanda  Powell,  The,  14  Fed.  486;  2  Stu.  Vice-Adm.  129;  City  of  Lon- 
David  Dows,  The,  16  Fed.  154;  Ed-  don,  The,  Swabey  300;  Maid  of 
win  H.  Webster,  The,  18  Fed.  724;  Auckland,  6  Notes  of  Cas.  240. 
Joseph  W.  Gould,  The.  19  Fed.  785;  ^  Grace  Girdler,  The,  7  Wall.  (U. 
Morten  v.  Five  Canal-Boats,  24  Fed.  S.)  196;  Kallisto,  The,  2  Hughes 
500;  Butterfield  v.  Boyd.  4  Blatchf.  (U.  S.)  128,  14  Fed.  Cas.  No.  7600; 
(U.  S.)  356,  4  Fed.  Cas.  No.  2250;  Cherokee,  The,  15  Fed.  119;  Worth- 
Summit,  The,  2  Curt.  (U.  S.)  150,  23  ington  and  Davis,  The,  19  Fed.  836; 
Fed.  Cas.  No.  13606;   Kallisto,  The,  City  of  London,  The,   Swabey  300; 

2  Hughes  (U.  S.)  128,  14  Fed.  Cas.  Catherine  of  Dover,  2  Hagg.  Adm. 
No.  7600;  Corks  v.  Belle,  The,  6  145,  154;  Rockaway,  2  Stu.  Vice- 
Fed.  Cas.  No.  3231a;  Bessie  Morris,  Adm.  129;  Maid  of  Auckland,  6 
The,  13  Fed.  397;  Saunders  v.  Han-  Notes  of  Cas.  240. 

over,  The,  2  Quart.  L.  J.  1,  21  Fed.  ■'John    Henry,    3    Ware     (U.    S.) 

Cas.  No.  12374;   Morgan  v.  Sim,  11  264,   13  Fed.   Cas.   No.    7350;    David 

Moore  P.  C.  307.  Dows,  The,  16  Fed.  154;  Scioto,  The, 

==  Worthington  and  Davis,  The,  19  2  Ware  (U.  S.)  360,  21  Fed.  Cas.  No. 

Fed.  836,  839;  Ludwig  Holberg,  The,  12508;  Fanny  Fern,  The,  Newb.  (U. 

157  U.  S.  60,  15  Sup.  Ct.  477;   City  S.)  158. 


683  INEVITABLE   ACCIDENT — PRESUMPTION.     [§§    33G9,    33T0. 

But  the  weight  of  the  authorities  is  in  favor  of  the  proposition  that 
in  case  of  inscrutable  fault  there  can  be  no  recovery.^ 

§  3369.  Inevitable  accident. — As  elsewhere  shown  no  recovery 
■can  be  had  by  either  party  where  the  disaster  is  attributable  to  in- 
evitable accident.  It  therefore  becomes  important  to  know  the  legal 
meaning  of  this  term.  The  United  States  Supreme  Court  said  of  it : 
"Inevitable  accident  is  where  a  vessel  is  pursuing  a  lawful  avocation 
in  a  lawful  manner,  using  the  proper  precautions  against  danger,  and 
an  accident  occurs.  The  highest  degree  of  caution  that  can  be  used 
is  not  required.  It  is  enough  that  it  is  reasonable  under  the  circum- 
stances— such  as  is  usual  in  similar  cases,  and  has  been  found  by  long 
experience  to  be  sufficient  to  answer  the  end  in  view — the  safety  of  life 
and  property."®  The  Supreme  Court  of  the  United  States  also  say 
of  it :  "Inevitable  accident,  as  applied  to  such  a  case,  must  be  under- 
stood to  mean  a  collision  which  occurs  when  both  parties  have  en- 
deavored by  every  means  in  their  power,  with  due  care  and  caution, 
and  a  proper  display  of  nautical  skill,  to  prevent  the  occurrence  of  the 
accident."^  In  cases  of  disaster  by  the  perils  of  navigation  or  in- 
evitable accident,  it  is  held  that  there  is  no  division  of  loss,  but  where 
neither  is  to  blame  it  must  fall  wholly  upon  him  who  suffers.* 

§  3370.  Presumption  of  fault. — The  proof  of  certain  facts  or  cir- 
cumstances may  raise  a  presumption  of  fault  or  negligence.  A  com- 
mon and  familiar  illustration  of  this  proposition  is  found  in  the  cases 
where  the  evidence  shows  that  at  the  time  of  a  collision  a  vessel  was 
violating  some  statutory  regulation  or  a  law  of  navigation,  intended 
to  prevent  collisions;  in  any  such  case  there  arises  a  reasonable  pre- 
sumption that  such  fault  or  negligence,  if  not  the  sole  cause,  was  at 

"Breeze,    The,    6    Ben.     (U.    S.)  Cas.  No.  17154;   Indus,  The,  6  Asp. 

14,    4    Fed.    Cas.    No.    1829;     Sum-  (N.  S.)  105. 

mit.   The,   2   Curt.    (U.    S.)    150,    23  'Morning  Light,  The,  2  Wall.   (U. 

Fed.    Cas.    No.    13606;    Worthington  S.)   550;    Leland,  The,  19  Fed.  771; 

and  Davis,  The,  19  Fed.  836;   Grace  Marpesia,  The,  L.  R.  4  P.  C.  212,  1 

Girdler,  The,  7  Wall.  (U.  S.)  196.  Asp.   (N.  S.)   261;  Virgil,  The,  2  W. 

"Grace  Girdler,  The,  7  Wall.    (U.  Rob.  201,  205. 

S.)  196,203;  Cherokee,  The,  15  Fed.  «  Stainback   v.   Rae,   14    How.    (U. 

119;  Atlanta,  The,  41  Fed.  639;   Le-  S.)  532;  John  Fraser,  The.  21  How. 

land,  The,  19  Fed.  771;  Baltic,  The,  (U.  S.)    184;   Grace  Girdler.  The.  7 

2  Ben.   (U.  S.)   452,  2  Fed.  Cas.  No.  Wall.    (U.  S.)    196;    Morning  Light. 

823;   Ward  v.  Fashion,  The,  Newb.  The,   2  Wall.    (U.   S.)    550;    Chicka- 

8,   6   McLean    (U.    S.)    152,    29   Fed.  saw.  The.  38  Fed.  358. 


§§  3371,  3372.]  collisions.  G84 

least  a  contributory  cause  of  the  collision."  But  it  has  been  held  that 
"where  everything  about  the  case  indicates  a  reasonable  degree  of 
diligence,  the  probability  that  the  ship  complied  with  her  duty  is 
prima  facie  established."^" 

§  3371.     Complaining  vessel  at  fault — Degree  and  burden  of  proof. 

Where  the  uncontradicted  testimony  shows  that  the  complaining 
vessel  was  at  fault,  and  such  fault  was  of  itself  sufficient  to  account 
for  the  disaster,  it  is  then  incumbent  upon  her,  to  entitle  her  to  re- 
cover, to  do  more  than  raise  a  doubt  in  regard  to  the  negligent  manage- 
ment of  the  other  vessel.  In  such  case  a  presumption  arises  against 
the  complaining  vessel,  and  any  reasonable  doubt  thus  raised  in  re- 
gard to  the  management  of  the  adversary  vessel  will  be  resolved  in  its 
favor."  So  it  is  held  that  negligence  on  the  part  of  the  complain- 
ing vessel  will  not  prevent  a  recovery  where  the  evidence  shows  that 
the  disaster  would  have  happened  by  reason  of  the  negligence  of  the 
other  vessel  notwithstanding  the  negligence  of  the  complainant.^^ 

§  3372.  Both  vessels  at  fault — Division  of  damages. — The  rule 
seems  to  be  almost  universally  adopted  that  where  the  evidence  shows 
that  both  vessels  were  at  fault  in  a  collision,  the  damages  will  be 
divided.  On  this  subject  the  Supreme  Court  of  the  United  States 
say:  "If  there  has  been,  on  the  part  of  plaintiff,  such  careless- 
ness or  want  of  skill  as  the  common  law  would  esteem  to  be  con- 
tributory negligence,  they  can  recover  nothing.  By  the  rule  of  the 
admiralty  courts,  where  there  has  been  such  contributory  negligence, 
or,  in  other  words,  when  both  have  been  in  fault,  the  entire  damages 
resulting  from  the  collision  must  be  equally  divided  between  the 
parties.  This  rule  of  the  admiralty  commends  itself  quite  as  favor- 
ably in  its  influence  in  securing  practical  justice  as  the  other,  and  the 
plaintiff,  who  has  the  selection  of  the  forum  in  wliieh  he  will  litigate 

'Pennsylvania,  The,  19  Wall.    (U.  Ct.   477;    Mexico,   The,    28   C.   C.   A. 

S.)    125;    see,    Bothnia,    The,    Lush.  472,   84   Fed.   504;    Columbian,   The, 

Adm.  52;  Eagle  Wing,  The,  135  Fed.  41  C.  C.  A.  150,  100  Fed.  991;   Car- 

826.  bonero.    The,   45    C.   C.   A.    314,    106 

'"Charles  L.  Jeffrey,  The,  5  C.  C.  Fed.    329;    Oregon,    The.    158    U.    S. 

A.  246,  55  Fed.  685;   H.  F.  Dimock,  186,    15    Sup.   Ct.    304;    Saunders  v. 

The,  23   C.  C.   A.  123,  77   Fed.   226.  Hanover,  The,   2  Quart.  L.  J.  1,   21 

But  see.  Admiral   Schley,  The,  131  Fed.     Cas.     No.     12374.       See    also. 

Fed.  433.  Georgetown,  The.  135  Fed.  854. 

"  City  of  New  York,  The,  147  U.         "  Columbian.  The,  41  C.  C.  A.  150, 

S.    72,    13    Sup.    Ct.    211;     Ludwig  100  Fed.  991. 
Holberg,  The.  157  U.  S.  60,  15  Sup. 


685  COMPAILVTIVE    FAULT.  [§    3373. 

cannot  complain  of  the  rule  of  tliat  forum.  It  is  not  intended  to 
say  that  the  principles  which  determine  the  existence  of  mutual  fault 
on  which  the  damages  are  divided  in  admiralty,  are  precisely  the 
same  as  those  which  establish  contributory  negligence  at  law  that 
would  defeat  the  action/'^ ^  And  it  has  been  held  that  the  division  of 
damages  will  be  equal  to  eacli  vessel,  regardless  of  the  difference  in 
value.  It  has  been  said  that :  "Nothing,  then,  is  more  just  than  a  con- 
tribution by  moieties.^'^'*  But  there  are  cases  holding  that  although  both 
vessels  are  in  fault,  yet  where  there  is  shown  to  be  great  disparity  of 
fault  and  there  are  cross-suits,  the  loss  will  be  apportioned  in  the  ratio 
of  such  disparity. ^^ 

§  3373.  Comparative  fault — Division  of  damages. — "Even  gross 
fault  committed  by  one  of  two  vessels  approaching  each  other  from 
opposite  directions  does  not  excuse  the  other  from  observing  every 
proper  precaution  to  prevent  a  collision;  and  when,  if  such  precau- 
tion had  been  observed  the  collision  would  have  been  avoided,  the 
loss  should  be  divided. "^*^  In  a  more  recent  case  one  federal  court 
admitted  that  it  might  still  be  regarded  an  open  question  "whether 
apportionment  is  the  rule  where  tjie  fault  is  inscrutable,  as  well  as 
when  both  vessels  are  in  fault,  or  whether  only  when  both  vessels  are 
in  fault.""  But  in  England  since  the  act  of  1873  this  rule  of  the 
division  of  damages  has  been  adopted  and  applied  in  cases  only  where 
both  ships  are  in  fault.^* 

"Atlee   V.    Packet    Co.,    21    Wall.  P.  C.  314;  Monarch,  The,  1  W.  Rob. 

(U.    S.)    389;    Catherine   v.    Dickin-  21;    Seringapatam,  The,  5  Notes  of 

son,  17  How.  (U.  S.)   170;  America,  Cas.   61;    Dowell  v.   General   Steam 

The,  92  U.  S.  432;  Mason  v.  William  Nav.  Co.,  5  El.  &  Bl.  195,  85  E.  C. 

Murtaugh,  3  Fed.  404;   Williams  v.  L.    194;    Oratava,    The,    5    Mo.   Law 

Wm.  Cox,  3  Fed.  645;  William  Cox,  Mag.  45;   De  Cock,  The,  5  Mo.  Law 

The,  9  Fed.  672;   Ant,  The,  10  Fed.  Mag.  303;  Abbott  Shipping  231,  232; 

294;    Alabama,    The,    10    Fed.    394;  see,  §§  3391,  3392. 

Memphis   &c.   Co.   v.    H.    C.    Yeager  "Scioto,  The,  2  Ware  (U.  S.)  360, 

&c.    Co.,   10   Fed.   395;    Connolly    v.  21  Fed.  Cas.  No.  12508;  Fanny  Pern, 

Ross,  11  Fed.  342;   Roman,  The,  12  The,    Newb.    (U.    S.)    158;    Abbott 

Fed.   219;    Monticello,  The,  15  Fed.  Ship.  301. 

474;    B   and    C,    The,    18    Fed.    543;  '="  Mary  Ida,  The,  20  Fed.  741.     See 

Explorer,  The,  20  Fed.  135;  Clarion,  also,    Philip    Minch,    The,    128    Fed. 

The,  27  Fed.  128;  Max  Morris,  The,  578. 

28   Fed.  881;    Fred.  W.  Chase,  The,  "Pegasus,  The.  19  Fed.  46;  Maria 

31  Fed.  91;  Celt,  The,  3  Hagg.  Adm.  Martin,  The,  12  Wall.  (U.  S.)  31. 

328,    n.;    Washington,    The,    5    Jur.  ^"  Max  Morris,  The,  28  Fed.  881. 

1067;    De  Vaux  v.   Salvador,   4  Ad.  "  Woodrop-Sims,  The,  2  Dods.  83; 

&  E.  420,  431;  Friends,  The,  4  Moo.  Max  Morris,  The,  28  Fed.  881. 


§§  3374,  3375.]  collisions.  686- 

§  3374.  Both  vessels  at  fault — Damage  to  third. — The  rule  that 
where  both  vessels  are  at  fault  tlie  damages  are  divided  does  not 
apply  in  a  case  of  injury  to  an  innocent  third  person  by  reason  of  the 
concurrent  fault  of  two  vessels.  A  party  without  fault  injured  by 
the  combined  negligence  of  two  or  more  wrongdoers  may  proceed 
against  either  or  both  of  the  offenders  for  his  entire  loss.^° 

§  3375.  Violating  statutory  duty — Burden  of  proof. — In  a  cer- 
tain class  of  collision  cases  the  rule  as  to  the  burden  of  proof  is  ex- 
tended. This  class  includes  mainly  cases  where  it  is  made  to  appear 
by  the  evidence  that  at  the  time  of  the  collision  the  vessel  was  violat- 
ing a  positive  statute  or  a  familiar  maritime  law,  intended  for  the 
prevention  of  collisions.  In  such  cases  the  burden  is  upon  the  vessel 
thus  violating  such  rules  to  show  not  only  that  this  fault  might  not 
have  been  one  of  the  causes,  or  that  it  probably  was  not,  but  it  is  re- 
quired to  go  further  and  to  establish  by  a  fair  preponderance  that 
the  particular  violation  of  a  statute  or  of  the  law  of  navigation 
could  not  have  contributed  to  or  resulted  in  the  disaster.""  This  rule 
has  been  otherwise  stated  thus :  "Every  doubt  to  the  preformance  of 
duty,  and  the  effect  of  non-performance  should  be  resolved  against 
the  vessel  sought  to  be  inculpated  until  she  vindicates  herself  by  tes- 
timony conclusive  to  the  contrary."^  ^  The  United  States  Supreme 
Court,  speaking  of  this  rule,  said:  "And  in  any  case  of  collision,, 
whenever  it  appears  that  one  of  the  vessels  has  neglected  the  usual 
and  proper  measures  of  precaution,  the  burden  is  on  her  to  show  that 
the  collision  was  not  owing  to  her  neglect."-^  The  cases  seem  tO' 
make  some  distinction  between  vessels  violating  statutory  provision 
and  those  which  fail  or  neglect  to  comply  with  the  usual  measures 
of  precaution. ^^ 

i^Franconia,    The,    16    Fed.    149;  U.   S.   130,   14    Sup.   Ct.    795;    B.    B. 

Alabama  and  Gamecock,  The,  92  U.  Saunders,  The,  19  Fed.  118. 

S.  695;  Atlas,  The,  93  U.  S.  302.  "Ariadne,  The,  13  Wall.    (U.   S.) 

="  Pennsylvania,  The,  19  Wall.  (U.  475. 

S.)    125;    Farragut,    The,    10   Wall.  ='=' Great  Republic,    The,    23    Wall. 

(U.  S.)  334;  Dentz,  The,  26  Fed.  40,  (U.  S.)    20;    Newport,  The,  5  Ben. 

29   Fed.  525;    Waring  v.   Clarke,   5  (U.   S.)    231,   14   Int.  Rev.  Rec.  37, 

How.    (U.   S.)    441;    Grace   Girdler,  18    Fed.    Cas.    10185;    Lion,    The,    1 

The,  7  Wall.  (U.  S.)  196;  Belden  v.  Sprague  (U.  S.)  40,  5  Fed.  Cas.  No. 

Chase,   150    U.    S.    674,    14    Sup.   Ct.  2786. 

264;  Martello,  The,  153  U.  S.  64,  14  =^  Great   Republic,    The,    23    Wall. 

Sup.   Ct.    723;    Britannia,    The,   153  (U.  S.)   20;   Nacoochee,  The,  137  U. 


i 


687     VIOLATION  OF  MARITIME  LAW JUSTIFICATION.      [§§    3376,    3377. 

§  3376.  Violating  maritime  laws — Justification. — A  violation  of 
the  laws  of  navigation  is  justifiable  only  "where  there  is  some  special 
cause  rendering  a  departure  necessary  to  avoid  immediate  danger, 
such  as  the  nearness  of  shallow  water,  or  a  concealed  wreck,  the  ap- 
proach of  a  third  vessel,  or  something  of  that  kind."^*  As  stated  in 
another  case,  this  exception  is:  "there  may  be  extreme  cases  where 
departure  from  their  requirements  is  necessary  to  avoid  impending 
peril,  but  only  to  the  extent  that  such  danger  demands."^^  Accord- 
ing to  the  English  rule,  where  a  steamer  is  libelled  for  having  omitted 
to  do  something  which  it  is  claimed  she  ought  to  have  done,  the  burden 
is  on  the  libelant  to  prove  three  things:  (1)  That  the  thing  omitted 
to  be  done  was  clearly  within  her  power  to  do;  (3)  that  if  done  it 
would  probably  have  avoided  the  collision;  (3)  that  it  was  an  act 
which  would  have  occurred  to  any  competent  and  experienced  oJBBcer- 
in  command.^® 

§  3377.  Steamers  must  keep  out  of  way — ^Burden  of  proof. — The 
law,  for  obvious  reasons,  places  the  duty  upon  steamers,  that  is,  all 
vessels  propelled  by  steam,  to  keep  out  of  the  way  of  other  vessels. 
And  this  duty  to  keep  out  of  the  way  is  held  to  mean  the  duty  of 
keeping  away  by  prudent  and  safe  margin  having  reference  to  all  the 
dangers  and  contingencies  of  navigation.-"  And  it  is  held  to  be  the 
rule  that  under  such  circumstances  the  steamer  must,  at  her  own 
peril,  leave  a  safe  margin  against  the  contingencies  of  navigation  and 
also  the  effect  of  tide  currents.^^  The  burden  is  on  the  vessel  which 
was  bound  to  keep  out  of  the  way  to  show  by  a  fair  preponderance  of 
the  evidence  that  the  collision  was  due  to  the  fault  of  the  other  vessel."-' 

S.  330,  11  Sup.  Ct.  122;  Lion,  The,  1  -'Wells    v.    Armstrong,     29     Fed. 

Sprague  (U.  S.)  40,  5  Fed.  Cas.  No.  216;  Aurania  and  Republic,  The,  29 

2786;  Newport,  The,  5  Ben.   (U.  S.)  Fed.  98,  125;  Ogemaw,  The,  32  Fed. 

231,   14   Int.    Rev.   Rec.   37,   18   Fed.  919;   New  Jersey,  The,  01c.   (U.  S.) 

Cas.  No.  10185;  H.  F.  Dimock,  The,  415,  18  Fed.  Cas.  No.  10161;    Whit- 

23  C.  C.  A.  123,  77  Fed.  226;  Colum-  ney   v.    Empire   State,    The,   1   Ben. 

bian,  The,  41  C.  C.  A.  150,  100  Fed.  (U.  S.)   57,  29  Fed.  Cas.  No.  17586. 

991 ;    Carbonero,    The,    45    C.    C.    A.  -'  City  of  Springfield,  The,  29  Fed. 

314,  106  Fed.  329.  923;    Ogemaw,    The,    32    Fed.    919; 

"'  Maggie  J.  Smith,  The,  123  U.  S.  James  M.   Thompson,   The,   12  Fed. 

349,  8  Sup.  Ct.  159.  189;    Carroll,  The,  8  Wall.    (U.  S.) 

=^Belden  v.  Chase,  150  U.  S.  674,  302. 

14  Sup.  Ct.  464;  Oregon.  The,  158  U.  -"Gypsum  Prince,  The,  14  C.  C.  A. 

S.  186,  15  Sup.  Ct.  804.  573,  67  Fed.  612.     See  also,  George- 

'"City  of  Antwerp,   The,   L.  R.    2  town.  The,  135  Fed.  854;   Donald  v.. 

P.  C.  25.  Guy.  135  Fed.  429. 


§§  3378,  3379.]  collisions.  G88 

§  3378.  Steamer  and  sailing  vessel — Prima  facie  liability. — Un- 
der the  rule  of  maritime  law  it  is  the  duty  of  a  steamer,  when  ap- 
proaching a  sailing  vessel  in  such  a  position  as  to  involve  risk  of  col- 
lision, to  keep  out  of  the  way ;  and  it  is  the  duty  of  the  sailing  vessel 
to  maintain  her  course.  A  failure  on  the  part  of  the  steamer  to  dis- 
charge this  duty  renders  her  prima  facie  liable  in  case  of  a  collision, 
in  the  absence  of  the  proof  of  any  fault  on  the  part  of  the  sailing  ves- 
sel. If  the  steamer  fails  to  exercise  all  necessary  precautions  to 
avoid  the  risk  of  collision,  she  is  presumptively  chargeable.  But  if  it 
is  shown  that  she  adopted  efficient  measures,  such  that  would  have 
been  effective  if  the  schooner  had  not  changed  her  course,  she  is 
thereby  exonerated.^"  But  if  the  master  of  the  sailing  vessel  con- 
tributes to  the  loss  by  his  negligence,  his  recovery  against  the  steamer 
will  be  confined  to  one-half  of  the  damages  of  the  sailing  vessel.^^ 

§  3379.  Collision  with  vessel  at  anchor — ^Burden  and  prima  facie 
case. — When  a  steamer  or  sailing  vessel  collides  with  one  at  anchor,  or 
without  sail,  the  burden  of  proof  is  on  such  steamer  or  sailing  vessel  to 
show  that  she  was  without  fault,  and  that  every  practical  effort  was 
made  to  avoid  the  collision.^-  But  in  such  a  case  it  has  been  held  that 
the  burden  was  also  on  the  libelant  to  show  that  his  vessel  was  anchored 
in  a  proper  place,  and  that  he  made  a  prima  facie  case  when  he 
proved  this  fact  togetlier  with  the  fact  of  the  collision,  and  that  the 
burden  was  then  shifted  to  the  libelled  vessel  to  show  that  it  was 

^"New   York   &c.    Co.   v.    Philadel-  The,  41  C.  C.  A.  150,  100  Fed.  991; 

phla  &c.  Co.,  22  How.    (U.  S.)   461;  New  Jersey,  The,  01c.    (U.  S.)    415, 

New   York   &c.    Co.   v.   Rumball,    21  18    Fed.    Cas.    No.    10161;    Fashion, 

How.    (U.    S.)    372;    New   York  &c.  The,    Newb.    8,    6    McLean    (U.    S.) 

Co.  V.  Calderwood,  19  How.   (U.  S.)  152,  29  Fed.  Cas.  No.  17154. 

241;   Potomac,  The,  8  Wall.   (U,  S.)  "  Farnley,  The,  8  Fed.  629. 

590;  Sea  Gull,  The,  23  Wall.  (U.  S.)  ^=  Scioto,    The,    2    Ware    (U.    S.) 

165;    Colorado,   The,   91   U.    S.   692;  360,  21  Fed.  Cas.  No.  12508;   Amos- 

S.    C.   Tryon,    The,    105    U.    S.    267;  keag  &c.  Co.  v.  John  Adams,  The,  1 

Pilot  Boy,  The,  53  C.  C.  A.  329,  115  Cliff.    (U.  S.)    404,   1  Fed.  Cas.   No. 

Fed.    873;    Columbia,    The,    27    Fed.  338;    New   York  &c.   Co.  v.   Calder- 

238;   New  York  &c.  Co.  v.  Rumball,  wood,  19  How.  (U.  S.)  241;  Granite 

21  How.    (U.  S.)   372;   Carroll,  The,  State,    The,    3    Wall.    (U.    S.)    310; 

8  Wall.   (U.  S.)  302;  Scotia,  The,  14  Louisiana,    The,    3    Wall.     (U.    S.) 

Wall.  (U.  S.)  170;  City  of  Antwerp,  164;   Buffalo,  The,  50  Fed.  630;  Bal- 

The,   L.   R.    2    P.    C.    25;    Haney   v.  tic.  The,  2  Ben.   (U.  S.)   452,  2  Fed. 

Louisiana,  The,  6  Am.  L.  Reg.  422,  Cas.  No.  823;  D.  H.  Miller,  The,  22 

11   Fed.   Cas.   Nos.   6020,    6021;    Jay  C.  C.  A.  597,  76  Fed.  877;    John  H. 

Gould,  The,  19  Fed.  765;  Columbia,  Starin,  The,  113  Fed.  419. 


€89  ABSENCE    OF   LOOKOUT — PRIMA    FACIE    CASE,  [§    3380. 

without  fault  or  that  the  disaster  was  the  result  of  fault  on  the  part 
of  the  libelant.^^  So,  where  a  steamboat  set  adrift  a  flat  from  which 
she  had  been  coaling,  the  burden  of  proof  is  on  the  vessel  to  show 
that  the  act  was  proper  and  that  there  was  no  fault  on  her  part.^* 
Where  the  evidence  shows  that  a  vessel  under  sail  collided  with  one 
without  sail  or  at  anchor,  it  is  held  to  be  sufficient  prima  facie  proof 
of  fault,  on  the  part  of  the  vessel  under  sail.  The  reason  is  that  she 
has  the  power  of  changing  her  course  and  thus  avoiding  the  accident.^" 

§  3380.  Absence  of  lookout — Prima  facie  case. — It  is  a  rule  of 
maritime  law  that  ever}^  steamboat  navigating  waters  where  there 
are  a  large  number  of  sailing  vessels  should  have  a  trustworthy  and 
constant  lookout  besides  the  helmsman.  And  under  such  circum- 
stances when  the  evidence  shows  a  collision  between  a  steamboat  and 
sailing  vessel  and  the  evidence  further  shows  that  there  was  no  look- 
out on  the  steamboat  besides  the  helmsman,  or  that  the  lookout  was 
not  properly  stationed,  or  that  he  was  careless  or  negligent  in  the 
discharge  of  his  duty,  it  has  been  held  that  such  facts  constitute  suf- 
ficient prima  facie  evidence  of  the  fact  that  the  collision  was  due  to 
the  fault  of  the  steamer.^*'  On  the  question  of  the  efEect  of  the  absence 
of  a  sufficient  lookout  a  district  court  said :  "The  want  of  a  proper 
lookout,  it  is  true,  is  immaterial,  if  it  in  no  way  contributed  to  the 
accident;  but  the  question  here  is  whetlier  the  lights  visible  from  the 
one  vessel  to  the  other  were  in  fact  correctly  seen  and  noted;  and 
whether  the  witnesses,  in  the  accounts  they  give,  did  see  what  they 
now  profess  to  have  seen.    The  presence  or  absence  of  a  proper  look- 

"Amoskeag  &c.  Co.  v.  John  Ad-  Paine,  10  How.   (U.  S.)  557;   Cathe- 

ams,  The,  1  Cliff.  (U.  S.)  404,  1  Fed.  rine  v.  Dickinson,  17  How.    (U.  S.) 

Cas.    No.    338;    Telegraph,    The,    1  170,   177;    New   York,   The,   v.   Rea, 

Spink  427.  18  How.    (U.  S.)    223;   Chamberlain 

^*  Chickasaw,  The,  38  Fed.  358.  v.  Ward,  21  How.  (U.  S.)  548;  Ha- 

^=  Scioto,    The,    2    Ware    (U.    S.)  ney  v.  Baltimore  &c.  Co.,  23  How. 

360,  21  Fed.  Cas.  No.  12508;   Strout  (U.   S.)    293;    Ottawa,  The,  3  Wall, 

v.  Foster,  1  How.   (U.  S.)   89;   Car-  (U.  S.)    268;    Colorado,   The,   91  U. 

roll,    The,    8    Wall.     (U.    S.)     302;  S.  692,  699;   Ant,  The,  10  Fed.  294; 

Amoskeag  &c.   Co.  v.   John  Adams,  New   York,    The,    v.    Rea,    18    How. 

The,  1  Cliff.  (U.  S.)  404,  1  Fed.  Cas.  (U.  S.)   223;    George  W.  Roby,  The, 

No.  338;  Ogemaw,  The,  32  Fed.  919;  49  C.  C.  A.  481,  111  Fed.  601;   Pilot 

Bothnia,   The,   Lush.    Adm.   52;    In-  Boy,  The,  53  C.  C.  A.  329.  115  Fed. 

dus.  The,  6  Asp.   (N.  S.)   105;   City  873;  Comet,  The,  9  Blatchf.  (U.  S.) 

of  Peking,  The.  6  Asp.   (N.  S.)   396.  323,    6   Fed.   Cas.   No.    3051;    Monti- 

'<>  Genesee   Chief   v.   Fitzhugh,    12  cello,  The,  15  Fed.  474;  Leland,  The, 

How.     (U.    S.)     443;     St.     John    v.  19  Fed.  771. 
Vol.  4  Elliott  Ev. — 44 


§§  3381,  3382.]  collisions.  690 

out,  and  the  position  of  the  witnesses,  and  the  probabilities  of  correct 
observation,  are  of  the  greatest  importance,  where  the  accounts  given 
are  irreconcilable."^^ 

§  3381.  Absence  of  lookout — Burden  of  proof. — The  absence  of  a 
lookout,  as  shown  by  the  preceding  section,  is  sufficient  prima  facie 
proof  of  negligence.  But  the  burden  to  overcome  this  prima  facie 
case  rests  upon  the  vessel  sailing  without  such  lookout;  and  this 
burden  increases  in  weight  as  the  dangers  of  navigation  increase.  In 
an  action  where  great  vigilance  was  required  a  federal  court  said: 
*'But  the  absence  of  the  lookout  from  duty,  under  the  circumstances 
of  this  case,  was  flagrant  negligence,  and  the  burden  of  showing 
that  the  collision  could  not  have  been  guarded  against  by  a  lookout 
rests  heavily  upon  the  Roby  (the  libelant). "^^ 

§  3382.  Burden  on  vessel  having*  wind  free. — It  seems  to  be  the 
settled  rule  of  maritime  law  that  where  a  vessel  having  the  wind 
free  collides  with  another  that  is  close-hauled,  the  burden  is  on  the 
former  to  show  a  sufficient  excuse  for  not  avoiding  the  collision. ^^ 
The  principle  was  more  fully  stated  by  Judge  Betts  as  follows :  "The 
rule  of  law  is  explicit  that  a  vessel  running  with  the  wind  free  must 
take  the  risk  of  avoiding  another  sailing  on  a  wind,  when  the  two 
meet  in  opposite  course,  if  the  free  vessel  has  the  opportunity  and 
means,  if  properly  used,  of  so  doing.  Indeed,  the  usage  for  the  vessel 
on  the  wind  to  hold  her  course,  and  for  the  one  sailing  free  to  give  way 

"Excelsior,  The,  12  Fed.  195,  201;  Boy,  The.  53  C.  C.  A.  329,  115  Fed. 

Farragut,  The,  10  Wall.  (U.  S.)  334;  873. 

Fannie,  The,  11  Wall.    (U.  S.)    238,         ^^ Clement,    The,   2   Curt.    (U.    S.) 

243;    Golden    Grove,    The,    13    Fed.  363,  5  Fed.  Cas.  No.  2879;   Clement. 

674;     Catherine     v.     Dickinson,     17  The,  1  Sprague  (U.  S.)   257,  5  Fed. 

How.   (U.  S.)   70.  Cas.      No.      2880;      Rebecca,      The, 

=^  George  W.  Roby,  The,  49  C.  C.  Blatchf.  &  H.    (U.  S.)    347,  20  Fed. 

A.    481,    111    Fed.    601;    Lyndhurst,  Cas.  No.   11618;    St.  John  v.  Paine. 

The,  92  Fed.  681;  Farragut,  The,  10  10  How.   (U.  S.)   557;  Osseo,  The,  8 

Wall.  (U.  S.)  334;  Ariadne,  The,  13  Ben.    (U.  S.)    518.  18  Fed.  Cas.  No. 

Wall.  (U.  S.)  475,  479;  Oregon,  The,  10607;    Freddie    L.    Porter,    The,    8 

158  U.  S.  186,  15  Sup.  Ct.  804;  Rob-  Fed.    170;     Douglass,    The,    1    Bro. 

inson  v.  Navigation  Co.,  20  C.  C.  A.  Adm.    (U.   S.)    105,  7  Fed.  Cas.  No. 

86,  73  Fed.  883;     Meyers  &c.  Co.  v.  4031;    Thames,  The,  5   C.  Rob.  345, 

Emma  Kate  Ross,  The,  41  Fed.  826;  348;    Baron   Holberg,  The,   3   Hagg. 

Wilders  S.  S.  Co.  v.  Low,  50  C.  C.  Adm.    244;     Woodrop-Sims,    The,    2 

A.    473,    112    Fed.    161;    Arthur    M.  Dods.  83. 
Palmer,    The,    115    Fed.    417;    Pilot 


691       VESSEL   ADRIFT — BURDEN    AND    PRESL-MPTION.        [§§    3383,    3384. 

in  such  case,  has  become  a  rule  of  law  which  imposes  the  damages  and 
losses  occasioned  by  its  non-observance  upon  the  vessel  which  disobeys 
the  rule,  unless  it  be  clearly  proved  that  her  misconduct  in  no  way  con- 
tributed to  the  injury."*"  An  omission  of  duty  on  the  part  of  one 
vessel  may  be  a  fault  bearing  so  little  proportion  to  the  greater 
faults  of  the  other  vessel  that  the  first  will  not  be  held  to  bear  any 
part  of  the  consequences  of  the  collision,'*^ 

§  3383.  Vessel  adrift — Burden  and  presumption. — In  such  cases 
the  rule  as  to  the  burden  of  proof  is  that  where  it  appears  that  the 
collision  was  caused  by  a  vessel  drifting  from  her  moorings  a  liability 
is  sufficiently  established  unless  the  drifting  vessel  can  affirmatively 
show  that  such  drifting  was  "the  result  of  inevitable  accident,  or  a 
vis  major,  which  human  skill  and  precaution,  and  a  proper  display 
of  nautical  skill  could  not  have  prevented.""  Proof  that  the  dis- 
aster was  occasioned  by  a  vessel  adrift  is  prima  facie  proof  sufficient 
to  establish  negligence  on  the  part  of  the  vessel  adrift,  or  on  the 
part  of  the  persons  who  set  her  adrift.-*^  The  rule  as  to  the  burden 
and  prima  facie  proof  was  thus  stated  by  one  district  court :  "The 
burden  of  proof  is  on  the  vessel  adrift  to  excuse  herself,  and  prima 
facie  she  is  negligent,  unless  her  owners  can  show  due  diligence, 
when  she  collides  with  one  harmlessly  and  faultlessly  at  anchor."*'* 

§  3384.    Towing  vessel — Liability  for  collision  with  towed  vessel. 

A  steamer  or  tug  which  undertakes  to  tow  a  vessel  is  liable  for 
injuries  occasioned  by  a  collision  with  the  vessel  towed.  The  duty 
of  the  tow  boat  not  to  cause  injury  to  the  vessel  in  tow  is  one  that 
is  imposed  by  law,  and  does  not  arise  out  of  contract.  In  such  cases 
the  tow  boat  is  liable  for  damages  caused  by  lier  own  negligence, 

« Emily,  The,  01c.   (U.  S.)   132,  8  '=  Louisiana,  The.  3  Wall.   (U.  S.) 

Fed.  Cas.  No.  4453;  Rebecca,  The,  1  164;  Granite  State,  The,  3  Wall.  (U. 

Blatchf.  &  H.    (U.  S.)   347,  20  Fed.  S.)  310;  Fremont,  The,  3  Sawy.  (U. 

Cas.  No.  11618;   Blossom,  The,  01c.  S.)  571.  9  Fed.  Cas.  No.  5094;  Jere- 

(U.  S.)   188,  3  Fed.  Cas.  No.  1564;  miah    Godfrey.    The,    17    Fed.    738; 

Argus,  The,  01c.  (U.  S.)  304.  1  Fed.  Chickasaw.  The.  41  Fed.  627. 

Cas.  No.  521;   Maria  and  Elizabeth.  "Chickasaw.  The.  38  Fed.  358. 

The,  7  Fed.  253;   Saunders  v.  Han-  "Chickasaw,  The,  38  Fed.  358;  A, 

over.   The.   2  Quarterly   L.  .T.   1,   21  R.   Wetmore,   The,    5    Ben.    (U.    S.) 

Fed.  Cas.  No.  12374;   Carll  v.  Eras-  147,  2  Fed.  Cas.  No.  569;   Jeremiah 

tus  Wiman,  The,  20  Fed.  245.  Godfrey.  The,  17  Fed.  738;    Brady, 

"Great   Republic,    The,    23    Wall.  The,  24  Fed.  300. 
(U.  S.)  20. 


§§  3385,  3386.]  collisions.  692 

and  proof  of  an  agreement  that  the  boat  was  to  be  towed  at  her  own 
risk  is  held  not  sufficient  to  exempt  the  tow  boat  from  liability,*^ 
But  this  rule  is  subject  to  the  exception  that  if  the  vessel  towed 
is  old  and  not  stanch  and  strong,  the  owner  is  bound  to  give  notice 
of  such  fact  to  the  towing  vessel,  and  in  the  absence  of  such  notice 
he  can  only  claim  the  benefit  of  ordinary  care  in  the  handling  of  the 
vessel.*^ 

§■3385.  Collision  in  fog. — It  appears  from  the  decided  cases  and 
is  the  result  of  nautical  experience  that  a  large  number,  perhaps  a 
vast  majority  of  maritime  collisions,  occur  during  fogs.  By  reason 
of  this  fact  statutes  have  been  enacted  and  usages  of  the  sea  adopted 
as  rules  of  navigation  for  the  purpose  of  insuring  greater  safety  in 
these  times  of  extreme  danger.  The  proof  of  violation  of  any  of  these 
enactments  or  rules  is  ordinarily  sufficient  to  establish  a  prima  facie 
case  of  negligence. 

§  3386.  Rate  of  speed  during  fog. — The  first  and  most  important 
rule  for  the  prevention  of  collisions  in  fogs  is  that  which  controls 
the  rate  of  speed  at  such  times.  No  absolute  rule  is  given  as  to 
the  particular  rate  of  speed,  but  proof  of  excessive  speed  under  all 
the  circumstances  is  held  sufficient  to  establish  negligence.*^  A 
vessel  commits  a  great  wrong,  a  risk  which  it  has  no  right  to  incur, 
to  run  in  a  fog  at  a  high  rate  of  speed  when  surrounded  by  or  in  close 
proximity  to  sailing  vessels.  It  is  held  no  excuse  for  seamen  to  say 
that  they  must  make  their  time  and  run  in  the  fog.  The  rule  is 
rigorously  enforced  and  vessels  are  punished  in  case  of  collision  in  a 
fog,  where  the  proof  shows  that  the  rate  of  speed  was  unreasonable 
under  the  circumstances.*® 

«M.   J.   Cummings,   The,  18  Fed.  S.)  89;  Bolivia,  The,  1  C.  C.  A.  221, 

178;    Syracuse,  The,  18  Fed.  828,   6  49    Fed.    169;    Hammonia,    The,    11 

Blatchf.   (U.  S.)   2,  22  Fed.  Cas.  No.  Blatchf.    (U.   S.)    413,  11   Fed.  Cas. 

13717;    Brooklyn,   The,   2   Ben.    (U.  No.   6007;   City  of  New  York,  The, 

S.)  547,  4  Fed.  Cas.  No.  1938;  Deer,  15  Fed.  624;  McCabe  v.  Old  Domin- 

The,  4  Ben.  (U.  S.)  352,  7  Fed.  Cas.  ion   S.   S.   Co.,   31   Fed.    234;    Otter, 

No.   3737;    Quickstep,   The,   9   Wall.  The.    4    Ad.    &    El.    203;     Pennsyl- 

(U.  S.)    665,  670;    Lady  Pike,  The,  vania,  The,  23  L.  T.  N.  S.  55;  valu- 

21  Wall.  (U.  S.)  1,  96  U.  S.  461.  able  notes  collecting  many  cases  on 

*•  Syracuse,  The,  18  Fed.  828.  this  subject  are  found  in,  28  C.  C. 

«  Pennsylvania,  The,  12  Fed.  914;  A.  532,  and,  23  C.  C.  A.  368. 

Nacoochee,   The,    28   Fed.   462;    Mc-  *«  Manistee,  The,   7  Biss.    (U.  S.) 

Cready  v.  Goldsmith,  18  How.    (U.  35,  16  Fed.  Cas.  No.  9028;   Leland, 


693        COLLISION  IN  FOG BUIUDEN  OF  PROOF.   [§§  3387,  3388, 

§  3387.     Collision  in  fog — Burden  of  proof  and  prima  facie  case. 

The  rule  as  to  burden  of  proof,  or  prima  facio  liability  in  case  of 
collision  by  reason  of  excessive  speed,  is  that  proof  of  a  violation  of 
the  laws  of  navigation  in  this  regard  is  sufficient  to  cast  upon  the 
vessel  thus  violating  the  burden  of  proving  that  damage  did  not  re- 
sult from  such  violation.^ ^  Where  the  proof  shows  that  a  vessel  was 
proceeding  at  full  speed  in  a  fog  the  burden  is  then  upon  such  vessel 
to  show  a  legal  excuse  for  such  rate  of  speed.  The  only  legal  excuse 
is  "the  existence  of  an  immediate  danger,  and  a  necessity  to  go  at 
full  speed  in  order  to  avoid  it."  But  the  mere  belief  that  full  speed 
will  avoid  a  danger  which  may  arise  in  the  future  is  not  such  legal 
excuse.'''' 

§  3388.  Rule  as  to  moderate  rate  of  speed. — Tlie  statutory  as  well 
as  the  maritime  rule  is  that  in  case  of  a  fog  vessels  must  proceed 
at  moderate  speed.  The  apparent  indefiniteness  of  this  rule  does  not 
render  it  unreasonable.  It  is  intended  to  be  and  is  a  practical  one  for 
the  guidance  of  practical  men.  This  term  "moderate  speed"  has  re- 
ceived a  construction  by  the  courts  that  makes  it  both  plain  and  rea- 
sonable, and  shows  that  its  application  depends  on  all  the  circum- 
stances under  which  vessels  are  placed.  One  district  court  said  of  it : 
"In  the  very  numerous  cases  which  have  arisen  in  this  country  and 
in  England  with  regard  to  the  meaning  of  this  term  it  has  been 
uniformly  held  that  it  admits  of  no  precise  definition.  What  under 
some  circumstances  would  be  a  moderate  speed  would  under  others; 
be  considered  excessive.  Mr.  Justice  Lowell  observes  that  the  de- 
cisions only  prove  that  there  is  scarcely  any  rate  of  speed  that  has 
not  been  held  to  be  too  great  upon  some  state  of  facts.  The  general 
rule  seems  to  be  that  steamers,  in  a  fog,  must  go  at  such  a  rate  of 
speed  as  Avill  enable  them  to  avoid  a  collision  by  slowing,  stopping, 
or  reversing,  within  the  distance  at  which,  under  the  particular  cir- 
cumstances of  each  case,  an  approaching  vessel  can  be  discovered."" 

The,   19   Fed.   771;    Clare   v.   Provi-  Blackstone,    The,    1    Low.    (U.    S.) 
dence  &c.  Co.,  20  Fed.  535;   Rhode  485,   3   Fed.   Cas.   No.   1473;    Monti- 
Island,  The,  17  Fed.  554.  cello,  The.   1   Holmes    (U.   S.)    7,  7 
^'Leland,  The,  19  Fed.  771.  Fed.  Cas.  No.  3971;  Oregon,  The,  27 
™  Iberia,   The,   40   Fed.   893;    City  Fed.  751;  H.  F.  Dimock,  The,  23  C. 
of  New  York,  The,  35  Fed.  604;  Kir-  C.   A.   123,   77    Fed.    226;    see   cases 
by  Hall,  The,  L.  R.  8  Prob.  D.  71.  collected  in,  notes,  28  C.  C.  A.  532, 
"City   of  Panama,  The,   5   Sawy.  29   C.   C.   A.   368,    5   Fed,   Cas.   No. 
(U.  S.)    63,  5  Fed.  Cas.   No.   2764;  787. 


5§  3389,  3390.]  collisions. 


694 


Another  court  said  of  this  moderate  speed :  "  'A  moderate  speed'  is 
a  term  used  in  the  statute  not  capable  of  any  definition  which  would 
apply  it  to  a  speed  of  any  given  number  of  miles  an  hour  alike  under 
all  circumstances.  What  would  be  moderate  speed  in  the  open  sea 
would  not  be  allowable  in  a  crowded  thoroughfare  or  a  narrow  chan- 
nel. And  under  the  same  circumstances,  in  other  respects,  the  speed 
should  be  the  more  moderate  according  as  the  fog  is  more  dense. 
The  only  rule  to  be  extracted  from  the  statute  and  a  comparison  of 
the  decided  cases  is,  that  the  duty  of  going  at  a  moderate  speed  in  a 
fog  requires  a  speed  sufficiently  moderate  to  enable  the  steamer  under 
ordinary  circumstances,  seasonably,  usefully,  and  effectually  to  do 
the  other  things  required  of  her  in  the  same  clause  of  the  statute; 
yiz.,  to  slacken  her  speed,  or,  if  necessary,  to  stop  and  reverse."^^ 

§  3389.  Moderate  speed — Criterion  and  burden. — As  to  the  criter- 
ion of  this  moderate  speed.  Judge  Blodgett  said :  "The  rule,  as  in- 
timated in  the  authorities  I  have  cited,  would  indicate  that  the 
standard  or  criterion  of  speed  at  which  a  steamer  can  safely  proceed 
in  a  dense  fog,  upon  a  highway  of  commerce  like  this,  and  when  the 
peril  of  collision  is  ever  present,  is  only  such  speed  as  will  enable 
her  to  stop,  so  as  to  avoid  a  collision  after  she  sights  or  hears  the  sig- 
nals of  a  sail  vessel  crossing  her  path."'^  It  has  been  held  that  by 
moderate  speed  is  meant  less  than  usual  speed.^*  A  vessel  colliding 
with  another  in  a  fog  in  order  to  escape  liability  must  show  to  the 
satisfaction  of  the  court  that  she  was  within  these  rules  governing 
the  rate  of  speed." 

§  3390.    Proof  of  speed  not  conclusive  evidence  of  negligence. 

Where  the  proof  shows  that  a  steamer  was  running  at  full  speed  in 

=^2  Monticello,   The,   1   Holmes    (U.  The,    23    Fed.    807;     Pennsylvania, 

S.)  7,  7  Fed.  Cas.  No.  3971.  The,   12  Fed.  914;    Nacoochee.  The, 

s^Leland,  The,  19  Fed.  771.  28    Fed.    462;    A.    Rosslter.    The,   1 

"Clare  v.  Providence  &c.  Co.,   20  Newb.  Adm.   (U.  S.)  225,  6  McLean 

Fed.  535;  State  of  Alabama,  The,  17  63,    29   Fed.   Cas.    No,    17147;    Elea- 

Ped.  847.  nora.  The,  17  Blatchf.  (U.  S.)  88,  8 

"Western     Metropolis,     The,      7  Fed.    Cas.   No.    4335;    City   of   New 

Blatchf.    (U.   S.)    214,   29  Fed.   Cas.  York,  The,  15  Fed.  624;    H.  F.  Di- 

No.    17441;    D.    S.   Gregory,    The,    2  mock.  The,  23  C.  C.  A.  123,  77  Fed. 

Ben.    (U.   S.)    166,   7  Fed.   Cas.   No.  226;    Batavier,    The,    9    Moo.    P.    C. 

4099;    Louisiana,    The,    2   Ben.    (U.  286,  40  Eng.  Law  &  Eq.  19,  25;  Mag- 

S.)  371,  15  Fed.  Cas.  No.  8537;  Col-  na  Charta,  The,  25  L.  T.  N.  S.  512. 
orado,  The,  91  U.  S.  692;   Alberta, 


695  MUTUAL    NEGLIGENCE.  [§§    3391,    3392. 

a  fog  a  few  minutes  before  a  collision,  it  is  not  sufficient  to  establish 
negligence  on  the  part  of  the  steamer  where  the  proof  further  shows 
that  at  the  time  of  the  collision  she  was  running  dead  slow/'*'  So 
it  has  been  held  that  the  fact  of  the  collision  may  be  conclusive  evi- 
dence of  speed  on  the  part  of  one  vessel  or  the  other,  but  it  is  not 
conclusive  evidence  of  speed  on  the  part  of  the  steamship  where  the 
collision  is  between  such  steamship  and  a  schooner." 

§  3391.  Mutual  negligence. — The  admiralty  courts  apply  their 
equitable  procedure  and  principles  in  cases  of  collisions  occurring 
from  the  negligence  of  both  parties.  These  courts  have  adopted 
and  constantly  apply  the  principle  of  comparative  negligence  in  their 
effort  to  do  equal  and  exact  justice  to  both  parties.  \¥heve  the  proof 
shows  that  both  parties  are  negligent  in  an  equal  degree  the  admiralty 
court  grants  no  relief  but  leaves  the  parties  in  the  position  it  finds 
them.  But  where  it  is  made  to  appear  that  both  vessels  have  been 
guilty  of  negligence,  but  in  an  unequal  degree,  it  is  the  rule  in  these 
courts  that  the  loss  will  not  be  cast  wholly  upon  the  one.  The  ad- 
miralty law  wisely  provides  for  a  division  of  damages  in  three  classes 
of  cases:  (1)  Where  on  the  evidence  the  fault  is  inscrutable;  (2) 
where  the  evidence  shows  that  neither  party  was  in  fault;  (3)  where 
the  evidence  shows  that  both  parties  were  guilty  of  negligence,  but 
in  an  unequal  degree.^^ 

§  3392.     Contributory  negligence  does  not  prevent  recovery. — The 

common  law  rules  of  contributory  negligence  find  no  place  in  ad- 
miralty courts.  The  libelant  is  in  no  way  required  to  prove  his 
freedom  from  fault.  The  rule  in  maritime  law  is  that  contributory 
negligence  on  the  part  of  the  libelant  will  not  prevent  a  recovery. 
As  the  law  of  negligence  is  administered  in  tliese  courts  a  libelant 
is  entitled  to  recover  when  he  proves  that  the  negligence  of  his  ad- 
versary exceeded  in  degree  that  of  his  own.^^  The  rule  has  been  es- 
tablished in  some  district  courts  that  running  boats  in  a  fog  is  not 
negligence  per  se,  but  that  in  the  absence  of  proof  of  negligence 
on  the  part  of  either  vessel  in  case  of  a  collision  a  court  of  admiralty 

">»Ludvig  Holberg,  The,  157  U.  S.  Scioto,  The,  2  Ware  (U.  S.)   360,  21 

60,  15  Sup.  Ct.  477.  Fed.    Cas.   No.   12508;    Catharine   v. 

"Ludvig  Holberg,  The,  157  U.   S.  Dickinson.  17  How.  (U.  S.)  170. 

60,  15  Sup.  Ct.  477.  '^^  David  Dows,  The,  16  Fed.  154; 

■^  David  Dows,  The,  16  Fed.  154;  Mabel  Comeaux,  The,  24  Fed.  490. 


§§  3393,  3394.]  collisions.  69(> 

will  not  apportion  the  damages.®"  Proof  of  violation  of  the  statute 
or  of  any  maritime  law  becomes  material  when  such  violation  pre- 
vents a  vessel  from  being  seen  in  time,  or  when  it  causes  unreasonable 
obstruction  or  embarrassment  in  the  performance  of  the  respective 
duties  of  the  vessel,  where  in  any  other  way  it  actively  contributes  to 
the  collision.®^ 

§  3393.  Contributory  negligence  does  not  prevent  recovery — ^Ex- 
ceptions.— The  rule  in  maritime  law  that  proof  of  contributory  negli- 
gence will  not  defeat  a  recovery  is  not  without  its  exception.  The 
exception  to  this  rule  is  thus  stated:  "If  the  plaintiff  so  far  con- 
tributed to  the  injury  complained  of  by  his  own  negligence  or  want 
of  ordinary  care  and  caution  as  that,  but  for  that  negligence  and  want 
of  care  and  caution  on  his  part,  the  injury  would  not  have  happened, 
then  he  is  not  entitled  to  recover."*'^ 

§'3394.  What  damages  recoverable. — The  rule,  as  previously 
shown,  is  that  where  both  vessels  are  in  fault  the  damages  are  to  be 
divided.  Under  this  rule  the  damages  subject  to  such  division  are 
not  necessarily  limited  to  the  actual  costs  of  repairs.  The  rule  as 
to  the  damages  intended  to  be  included  is  stated  thus  by  one  court: 
"It  is  sometimes  said  that  the  damage  done  to  both  ships  is  to  be 
added  together  and  the  sum  thereof  equally  divided.  But  this  lan- 
guage is  never  used  in  such  connection  as  to  lead  to  the  inference 
that  nothing  but  the  actual  cost  of  repairs  is  to  be  taken  into  ac- 
count. By  the  word  'loss'  or  'damages'  I  understand  the  Supreme 
Court  to  mean  the  injury  directly  and  necessarily  resulting  from  the 
collision.  If  a  vessel  be  bound  upon  a  voyage,  and  is,  by  reason  of  a 
collision,  detained,  the  loss  from  detention  is  a  part  of  the  damages 
resulting  from  the  collision;  and  if  she  is  disabled  by  such  collision, 
so  that  repairs  are  necessary,  the  actual  cost  of  such  repairs  is  like- 
wise part  of  the  damages.    And  in  either  case  such  loss  or  damage  is 

«» Joseph  W.  Gould,  The,   19  Fed.  "=  Sunney    v.    Holt,    15    Fed.    880; 

785;   Sylph,  The,  4  Blatchf.   (U.  S.)  Carl,    The,    18    Fed.    655;    Explorer, 

24,  23  Fed.  Cas.  No.  13711.  The,   20   Fed.   135;    Wanderer,   The, 

^^Favorita,    The,    1   Ben.    (U.    S.)  20  Fed.  140;   E.  B.  Ward,  Jr.,  The, 

30,    8    Fed.    Cas.    No.    4693;    Yourri,  20  Fed.  702. 

The,  L.  R.  10  App.  Cas.  276;  Mary-  '^'Memphis  &c.  Co.  v.  H.  C.  Yea- 
land,  The,  19  Fed.  551;  Sam  Rotan,  ger  &c.  Co.,  10  Fed.  395;  Mary  Pat- 
The,  20  Fed.  333;  Doris  Eckhoff,  ten,  The,  2  Low.  (U.  S.)  196,  16 
The,  32  Fed.  555.  Fed.  Cas.  No.  9223. 


697  PROOF  OF  USAGE.  [§  3395„ 

to  be  paid  by  the  party  solely  in  fault,  if  the  fault  be  all  on  one  side,. 
or  to  be  divided  if  the  fault  be  mutual.""^ 

§  3395.  Proof  of  usage. — The  rules  of  navigation  are  not  entirely 
statutory.  The  statutory  requirements  are  largely  confirmatory  of 
the  rules  of  usages  sometimes  called  law  of  the  sea,  which  existed 
long  before  their  was  any  legislation  upon  the  subject  and  whicli  were 
adopted  by  both  law  and  admiralty  courts,  and  were  used  in  determin- 
ing alleged  questions  of  fault  and  negligence  in  navigation.  In  the 
absence  of  positive  statutes  these  usages  are  still  adhered  to  by  the- 
courts  and  on  disputed  questions  of  navigation  not  determined  by 
statute  or  by  the  rules  of  court  regulating  the  practice  in  admiralty,, 
it  has  been  held  that  expert  evidence  is  admissible  to  show  a  general 
usage  regulating  the  particular  matter.*'*  This  principle  was  stated 
by  the  United  States  Supreme  Court  as  follows:  "Sailing  rules  and 
other  regulations  have  since  been  enacted;  and  it  is  everywhere  ad- 
mitted that  such  rules  and  regulations,  in  cases  where  they  apply,, 
furnish  the  paramount  rule  of  decision;  but  it  is  well  known  that 
questions  often  arise  in  such  litigations,  outside  of  the  scope  and 
operation  of  the  legislative  enactments.  Safe  guides,  in  such  cases,. 
are  often  found  in  the  decisions  of  the  courts,  or  in  the  views  of 
standard  text-writers;  but  it  is  competent  for  the  court,  in  such  a 
case,  to  admit  evidence  of  usage ;  and,  if  it  be  proved  that  the  matter 
is  regulated  by  a  general  usage,  such  evidence  may  furnish  a  safe 
guide  as  the  proper  rule  of  decision.'"'^  So,  where  a  vessel  fails  to 
follow  this  usage  and  a  collision  or  accident  results  the  burden  of 
proof  is  upon  the  failing  vessel  to  show  a  different  state  of  circum- 
stances requiring  the  other  vessel  to  depart  from  such  usage  and  go 
to  the  left.'"'  In  a  very  recent  case,  evidence  of  the  practice  and  custom 
at  the  place  of  collision  seems  not  only  to  have  been  admitted  but  was- 
also  held  to  justify  or  excuse  the  passage  of  tugs  and  tows  on  the  star- 
board side  instead  of  the  port  side  as  tlie  statutory  navigation  laws  re- 
quire in  ordinary  cases.  The  court  held  that  as  the  practice  of  going 
to  the  left  instead  of  to  the  right  in  passing  under  the  bridge  where  the 
collision  occurred  had  existed  ever  since  the  bridge  was  built  and  was 

•*City    of    Washington,     The,    92  (U.  S.)  276,  29  Fed.  Cas.  No.  17220; 

U.  S.  31.  St.  John  v.  Paine,  10  How.   (U.  S.) 

«^City  of  Washington,  The,  92  U.  557,    582;    America,    The,    92    U.    S. 

S.  31.  432;  A.  Demerest,  The,  25  Fed.  921.. 

°« Washington,     The,     3     Blatchf. 


§  3395.]  COLLISIONS.  698 

apparently  justified  by  the  necessities  of  the  bridge  navigation,  there 
could  be  no  recovery  where  the  tug  and  tow  in  question,  although  go- 
ing on  the  left  instead  of  the  right,  blown  against  another  by  a  sudden 
and  unexpected  storm,  to  the  great  injury  of  the  latter  tow.®^ 

*'  Cornell,  The,  134  Fed.  694.    This     there  can  be  no  recovery  where  the 
decision  also  supports  the  rule  that     loss  is  occasioned  by  vis  major. 


EVIDENCE  IN  COURTS-MARTIAL. 


699 


CHAPTEE  CLXVIII. 

ORIGIN    AND    HISTORY. 

Sec.  Sec. 

3396.  Ancients— Generally.  3398.  History    of    courts-martial    in 

3397.  History   of    courts-martial    in  the  United  States. 

England.  3399.  Military  law. 

3400.  Martial  law. 

§  3396.  Ancients — Generally. — A  tribunal  in  some  form  has  ex- 
isted from  the  earliest  history  of  armies  whose  functions  it  was  to 
enforce  discipline  and  punish  offenders.  In  the  Roman  army  the 
magistry  militum  and  the  legionary  tribunes,  either  as  sole  judges 
or  with  the  assistance  of  councils  sat  as  military  tribunals.  The 
early  Germans  in  time  of  war  tried  their  military  offender  by  the 
Duke  or  military  chief,  but  he  usually  delegated  his  jurisdiction  to 
the  priests  accompanying  the  army.  Courts  of  regiments  held  either 
by  the  colonel  or  by  an  officer  invested  by  him  with  the  staff  or  mace 
called  the  regiment  arose  in  later  times.  The  king  reserved  the  power 
to  convene  the  courts  composed  of  bishops  and  nobles  for  the  trial 
of  high  commanders.  But  courts  administering  military  codes  were 
not  instituted  until  in  comparatively  modern  times. ^  Military  juris- 
diction in  France  was  originally  invested  in  the  Mayor  of  the  Palace, 
the  Grand  Seneschal,  the  constable,  and  the  Provost-Marshal.  Courts- 
martial  appear  to  have  been  first  established  in  the  year  1655.^  Among 
the  Saxons  or  the  Anglo-Normans  the  hearing  was  before  a  jury  of 
the  Peers  of  the  accused  or  his  military  associates  upon  specific 
charges ;  he  was  permitted  to  defend  and  the  proof  was  made  by  wit- 
nesses produced  and  examined.  The  courts-martial  of  the  later 
periods  adopted  and  followed  the  main  features  of  these  courts  of  the 
Anglo-Saxons.^ 

'Adams  Roman  Ant.  330;  Bruce's        '^  Le  Faure  141;  Foucher  Code  de 
Institutes    295,    et   seq.;    Von    Moli-     la  Justice  Militaire  3. 
tor     Kriegsgerichte     und     militar-        ='Von  Molitor,  §  1.  par.  8;   1  Win- 
strafen  11;   Koopmann  Militarstraf-    throp  Mil.  Law  &  Prec.  4,  47. 
gesetzbuck;   Ayala  de  Judiciis  Mili- 
taribus. 

701 


§§  3397,  3398.]  origin  and  history.  702 

§  3397.  History  of  courts-martial  in  England. — Col.  Winthrop 
says  in  substance  that  the  modern  court-martial  in  England  had  its 
origin  in  the  "King's  Court  of  Chivalry,"  or  "Court  of  the  High 
Constable  and  Marshal  of  England."  This  court  was  also  called 
"Court  of  Arms,"  or  "Court  of  Honor;"  the  judges  of  this  court 
were  the  Lord  High  Constable  and  Earl  Marshal.  Originally  this 
court  had  both  civil  and  criminal  jurisdiction;  it  took  cognizance  of 
"all  matters  touching  honor  and  arms,"  "pleas  of  life  and  member 
arising  in  matters  of  arms  and  deeds  of  war,"  "the  rights  of  prisoners 
taken  in  war"  and  also  of  "the  offenses  and  miscarriages  of  soldiers 
contrary  to  the  laws  and  rules  of  the  army ;"  it  exercised  jurisdiction 
in  cases  of  civil  crimes  and  on  questions  of  contract.  But  this  court 
of  Chivalry  was  subsequently  much  limited  in  its  power  and  finally 
upon  the  attainder  of  the  High  Constable  in  the  thirteenth  year  of 
Henry  the  Eighth  fell  into  disuse  and  while  never  abolished  by 
specific  statute,  it  had  practically  ceased  to  exist  as  a  military  tribu- 
nal before  the  time  of  the  English  Eevolution.  In  later  years  the 
administration  of  justice  in  the  military  forces  was  by  courts  or 
councils  held  under  what  was  known  as  the  ordinance  or  articles. 
There  were  usually  orders  or  proclamations  directly  from  the  King 
issued  for  the  government  of  the  army  when  about  to  proceed  upon  an 
expedition  or  from  time  to  time  during  war;  "these  were  succeeded 
by  more  extended  precepts  which  continued  to  be  put  forth  by  the 
Crown,  or  by  its  authority,  to  the  period  of  the  rebellion.  These 
articles  and  the  Code  promulgated  by  Gustavus  Adolphus  were  super- 
ceded by  what  has  been  known  as  the  'Mutiny  Act.'  This  Act  and 
subsequent  renewals  were  continued  in  force  until  1879  when  it  was 
succeeded  by  a  new  law  entitled  the  'Army  Discipline  and  Eegulation 
Act.'  By  this  the  sovereign  was  authorized  to  make  articles  of  war 
and  rules  of  procedure  for  courts-martial,  and  from  this  we  have  the 
present  English  courts-martial."* 

§  3398.  History  of  courts-martial  in  the  United  States. — On  the 
origin  and  history  generally  of  courts-martial  in  the  United  States 
Col.  Winthrop  says:     "The  English  military  tribunal,  transplanted 

*1  Winthrop  Militatry  Law  &  Davis  Mil.  L.  13;  1  Hallam  Const. 
Prec.  6,  49;  2  Grose  Hist.  Eng.  Hist.  325,  531;  8  Opinions  Attorney- 
Army  58,  70;  Clode  Martial  Law  General  365;  Chambers  v.  Jennings, 
9-11,  83,  158;  Hale  History  of  Com-  7  Mod.  125,  2  Salk.  553;  Grant  v. 
mon  Law  42;  Hawk  P.  C,  Book  2,  Gould,  2  H.  Bl.  69,  84;  People  v. 
Ch.    4;    3    Bl.    68;    2   McArthur   20;  Van  Allen,  55  N.  Y.  31. 


703  IN  UNITED  STATES.  [§    3398. 

to  this  country  prior  to  our  Eevolution,  was  recognized  and  adopted 
by  the  Continental  Congress,  in  the  first  American  Articles  of  War  of 
1775,  where  the  different  courts-martial — General,   Regimental   and 
detachment  or  Garrison  courts — were  distinguished,  and  their  com- 
position and  jurisdiction  defined.     These  provisions  were  modified 
and  enlarged  in  the  succeeding  Articles  of  1776  and  1786,  and  in 
the  latter  the  authority  to  order  general  courts  was  more  precisely  in- 
dicated.     Coming  to  the  period  of  the   Constitution — that  instru- 
ment, while  expressly  empowering  Congress  to  provide  for  the  govern- 
ment of  the  army,  and  thus  to  institute  courts-martial,  also  recog- 
nized— in  the  Fifth  Amendment— the  distinction  between  civil  of- 
fenses and  those  cognizable  by  a  military  forum.    But,  in  legislating 
in  view  of  these  provisions.  Congress  did  not  originally  create  the 
courts-martial,  but,  by  the  operation  of  the  Act  of  September  29, 
1789,  continued  it  in  existence  as  previously  established.     Thus,  as 
already  indicated,  this  court  is  perceived  to  be  in  fact  older  than  the 
Constitution,  and  therefore  older  than  any  court  of  the  United  States 
instituted  or  authorized  by  that  instrument.     The  revised  code  of 
articles  of  war  soon  after  enacted,  viz.,  by  the  Act  of  April  10,  1806, 
repeated  the  provisions  of  1786  in  regard  to  courts-martial,  with 
some  slight  modifications,  consisting  mainly  in  extending  the  author- 
ity to  convene  general  courts  and  in  substituting  the  President  for 
Congress  in  the  cases  in  which  the  latter  had  previously  been  vested 
with  final  revisory  authority.     These  earlier  codes,  as  also  the  later 
articles,  have  been  considered  in  Chapter  II,  and  are  set  forth  in  the 
Appendix.     Between  1806  and  1874,  a  fourth  courts-martial — The 
Field-Officer's  Court,  authorized,  however,  only  in  time  of  war — was 
added  to  those  previously  established ;  the  authority  to  order  general 
courts  was  still  further  extended,  and  their  jurisdiction  and  powers 
were  enlarged.    The  legislation  by  which  these  changes  were  intro- 
duced has  been  heretofore  indicated  as  embraced  in  the  code  of  ar- 
ticles contained  in  the  Revised  Statutes  of  June  22,  1874.   The  subse- 
quent amendments  to  these  articles  and  other  enactments  affecting 
the  same— including  that  of  October  1,  1890,  adding  the  Summary 
Court  to  the  list  of  military  tribunals— have  already  been  specified. 
The  Articles  of  1874,  with  these  later  provisions,  comprise  the  exist- 
ing statute  law  in  regard  to  the  constitution,  composition,  jurisdic- 
tion, powers  and  procedure  of  American  courts-martial.     The  regula- 
tions and  usages  relating  to  their  forms  and  practice  have  been  re- 
ferred to  in  previous  chapters."^ 

^Winthrop  Military  Law  &  Prec.   50;    Reed,  Ex  parte.  100  U.  S.  13; 


§§  3399,  3400.]  origin  and  history.  704 

§  3399.  Military  law. — Military  law  is  mainly  the  creature  of 
statutes  and  is  enacted  for  the  purpose  of  furnishing  rules  for  the 
government  and  discipline  of  the  army  and  navy/  regardless  of  an 
actual  state  of  war.  Its  jurisdiction  and  application  extend  usually 
only  to  those  who  are  a  part  of  the  army,  and  is  limited  almost  ex- 
clusively to  breaches  of  military  duty.  The  statute  explicitly  defines 
the  breaches  of  military  duty,  especially  those  which  are  highly  penal, 
over  which  the  military  law  exercises  its  jurisdiction.  It  does,  how- 
ever, extend  to  all  cases  that  can  strictly  or  properly  be  called  neglect 
of  duty  or  discipline.'^  It  takes  cognizance  only  of  matters  that  are 
criminal  or  quasi-criminal.  This  subject  has  been  more  particularly 
defined  thus:  "Military  law  is  that  portion  of  the  law  of  the  land 
designed  for  the  government  of  a  particular  class  of  persons,  and  ad- 
ministered by  special  tribunals.  It  is  superinduced  to  the  ordinary 
law  for  the  purpose  of  regulating  the  citizen  in  his  character  of  sol- 
dier; and  although  military  offenses  are  not  cognizable  under  the 
common-law  jurisdiction  of  the  United  States,  yet  the  articles  of  war 
clearly  recognize  the  superiority  of  the  civil  over  the  military  author- 
ities."« 

§  3400.  Martial  law. — There  is  a  clear  distinction  between  martial 
law  and  what  is  sometimes  particularly  denominated  military  law. 
The  distinction  rests  chiefly  in  the  difference  in  jurisdiction,  yet  it 
enters  also  into  the  rules  of  practice  and  the  admission  of  evidence. 
While  to  a  certain  extent  martial  law  may  include  what  has  been 
termed  military  law,  it  extends  also  to  a  great  variety  of  subjects 
with  which  military  law  can  have  nothing  to  do.  Martial  law  usually 
exists  in  case  of  actual  war  and  is  proclaimed  by  the  military  chief 
and  is  founded  on  what  is  sometimes  termed  paramount  necessity. 
When  imposed  upon  a  country  or  city  all  the  inhabitants,  civil  and 
military  are  included  within   its  terms.     The  Duke  of   Wellington 

Mason,  Ex  parte.  105  U.  S.  696;  Mil-  'Grant  v.  Gould,  2  H.  Bl.  69,  73, 

ligan.  Ex  parte,  4  Wall.    (U.  S.)    2,  100;   Wolton  v.  Gavin,  15   Jur.  329, 

123;  Bogart,  In  re,  2  Sawy.   (U.  S.)  16    Q.    B.    48;    Smith    v.    Shaw,    12 

396;   People  v.  Daniell.  6  Lans.   (N.  Johns.  (N.  Y.)  257;  Mills  v.  Martin, 

Y.)    44;    Rawson   v.   Brown.   18   Me.  19  Johns.   (N.  Y.)  7,  20;  Johnson  v. 

216;    United  States  v.  Mackenzie,  1  Jones,  44  111.  142,  92  Am.  Dec.  159. 

N.   Y.   Leg.   Obs.   371,   30   Fed.   Cas.  « Benet    Military    Law    &    Court- 

18313;    2   American   Archives  1855;  Martial  7;   De  Harte  Militatry  Law 

15  Opinion  Attorney-General  152.  16;  Winthrop  Military  Law  &  Free. 

•United  States  v.  Dunn,  120  U.  S.  1,  4;  Greenleaf  Ev.,  §§  468,  469. 
252,  7  Sup.  Ct.  507. 


705 


MARTIAL    LAW. 


[§  3400. 


said  "that  martial  law  was  neither  more  nor  less  than  the  will  of  the 
general  who  commands  the  army;  in  fact,  martial  law  is  no  law  at 
all."  And  Earl  Grey  said  on  the  same  occasion,  "that  what  is  called 
proclaiming  martial  law  is  no  law  at  all  but  merely  for  tlie  sake  of 
public  safety,  in  circumstances  of  great  emergency,  setting  aside  all 
law,  and  acting  under  the  military  power."^  One  writer  thus  de- 
fines it:  "The  scope  of  martial  law  is  rather  danger  than  actual 
outbreak ;  it  is  prevention  rather  than  resistence ;  it  is  anticipation 
of  apprehended  insurrection;  it  is  the  mode  of  dealing  witli  a  state 
of  rebellion  rather  than  its  mere  actual  outbreak,  although  that  state 
may  be  declared  by  some  outward  acts  and  outrages." ^^ 


°  Duke  of  Wellington's  Speech  in 
House  of  Lords,  April  1,  1851;  Fin- 
lason  Martial  Law,  Preface  VII;  1 
Winthrop  Military  Law  &  Prec. 
1274,  et  seq.;  De  Harte  Military- 
Law  17;  Maltby  Courts-Martial  3, 
et  seq.;  Milligan,  Ex  parte,  4  Wall. 
(U.  S.)  2,  127;  Egan,  In  re,  5 
Blatchf.  (U.  S.)  319,  8  Fed.  Cas.  No. 
4303. 


'"Finlason  Martial  Law  27;  3 
Greenleaf,  §§  468,  469;  Benet  Mili- 
tary Law  &  Court-Martial  10-14; 
Grant  v.  Gould,  2  H.  Bl.  69,  98; 
Luther  v.  Borden,  7  How.  (U.  S.)  1, 
59;  Griffin  v.  Wilcox,  21  Ind.  370, 
377;  Kemp,  In  re,  16  Wis.  359,  368. 
See  generally  note  92  Am.  Dec.  180. 


Vol.  4  Elliott  Ev. — 45 


CHAPTEE  CLXIX. 


NATURE   AND   ORGANIZATION. 


Sec.  Sec. 

3401.  Court-martial  is  a  court.  3409.  Judge      advocate  —  Appoint- 

3402.  General    courts-martial  —  Or-  ment. 

ganization,  etc.  3410.  Judge  advocate — Who  may  be 

3403.  Regimental     or     corps    court-  appointed. 

martial.  3411.  Judge   advocate — Powers. 

3404.  Number  composing  court.  3412.  Judge  advocate — Duties  to  the 

3405.  Garrison  court-martial.  court. 

3406.  Summary  courts-martial.  3413.  Judge  advocate— Duties  to  the 

3407.  Presiding  officer.  accused. 

3408.  Presiding    officer — Functions.  3414.  Members— Qualifying. 

§  3401.  Court-martial  is  a  court. — A  court-martial  is  recognized 
by  almost  all  authorities  and  law  writers  as  a  court  or  judicial  tribu- 
nal with  the  essential  functions  of  such.  It  decides  upon  its  juris- 
diction, entertains  charges,  hears  evidence,  passes  sentence,  and  in 
some  form  directly  or  indirectly  executes  its  judgments.  On  the 
nature  of  this  tribunal  the  Court  of  Appeals  of  New  York  saysr 
"Courts-martial  were  instituted  for  the  trial  of  naval  and  military 
offenses,  and  existed  as  early  as  the  reign  of  James  II,  and  probably 
had  their  origin  in  the  ancient  Court  of  Chivalry.  They  are  re- 
garded as  a  necessity  in  every  civilized  government,  in  order  to  prop- 
erly discipline  the  military  forces,  by  punishing  offenses  therein.  The 
tribunal  is  recognized  as  a  court  in  the  elementary  works.  Bouvier 
defines  it  as  'a  military  or  naval  tribunal,  which  has  jurisdiction  of  of- 
fenses against  the  law  of  the  service,  military  or  naval,  in  which  the 
offenders  is  engaged.'  Greenleaf  says:  'A  court-martial  is  a  court 
of  limited  and  special  jurisdiction.'  It  has  all  the  elements  of  a  court. 
It  has  judges  to  hear  the  evidence,  and  determine  the  facts,  and  apply 
the  law.  It  has  parties,  prosecutor  and  defendant.  It  has  pleadings 
and  a  formal  trial,  renders  judgment  and  issues  process  to  enforce  it. 
In  short,  it  does  everything  within  the  sphere  of  its  jurisdiction  which 
any  judicial  tribunal  can  do  to  administer  justice."^  But  it  has  been 
held  that  a  court-martial  is  not  a  court  of  record. - 

'People  V.  Van  Allen,  55  N.  Y.  31;     S.)    193;    Wilson   v.    John,    2   Binn. 
3  Greenleaf  Ev.,  §  470.  (Pa.)   209. 

^Watkins,   Ex   parte,    3    Pet.    (U. 

706 


707  GENERAL   COURTS-MAKTIAL.  [§§    3402-3404. 

§  3402.  General  conrts-martial  —  Organization,  etc.  —  General 
courts-martial  when  necessary  may  be  appointed  by  any  general  officer 
commanding  an  army,  a  territorial  division  or  a  department,  or 
colonel  commanding  a  separate  department.  When  any  such  com- 
mander or  officer  is  the  prosecuting  witness  against  any  officer  under 
his  immediate  command  the  court  shall  be  appointed  by  the  President. 
The  commander  of  a  division,  or  of  a  separate  brigade  of  troops,  shall 
have  power  to  appoint  a  general  court-martial  in  time  of  war.  But 
if  such  commander  is  the  prosecuting  witness  in  case  of  a  charge 
against  any  person  under  his  command  such  court  shall  be  appointed 
by  the  next  higher  in  command.  The  President  of  the  United  States 
as  Commander-in-Chief  of  the  Army  has  the  right  by  virtue  of  his 
office  to  appoint  a  general  court-martial.^ 

§  3403.  Regimental  or  corps  court-martial. — The  army  regula- 
tions also  provide  that  an  officer  commanding  a  regiment  or  a  corps 
shall  have  authority  to  appoint  courts-martial  for  his  own  regiment 
or  corps.  Such  court  shall  consist  of  three  officers,  and  it  shall  have 
jurisdiction  to  try  all  offenses  committed  by  persons  connected  with 
such  regiment  or  corps  except  capital  cases.*  Under  the  provisions 
of  this  section  it  has  been  held  that  the  Chief  of  Engineers  was  au- 
thorized to  order  a  court-martial  for  the  trial  of  soldiers  of  the 
Engineer  Battalion,  and  that  such  battalion,  in  connection  with  the 
engineer  officers  of  the  army,  are  deemed  to  constitute  a  corps  within 
the  sense  of  this  article.  So,  it  was  held  that  the  Chief  of  Ordnance 
under  this  article  was  authorized  to  order  a  court  for  the  trial  of  men 
enlisted  by  him,  this  being  such  a  separate  and  distinct  branch  of  the 
military  as  to  come  within  the  meaning  and  designation  of  corps. 
And  for  similar  reasons  it  was  held  that  the  chief  signal  officer  was 
authorized  to  convene  courts-martial.^ 

§  3404.  Number  composing  court. — By  the  statutory  provision 
general  courts-martial  may  consist  of  any  number  of  officers  from 
five  to  thirteen,  inclusive ;  but  it  must  consist  of  not  less  than  thirteen 
when  this  number  can  be  used  as  a  court  without  injury  to  the  serv- 
ice.'' When  the  number  required  to  form  a  general  court-martial  is 
not  present  at  any  military  post  or  detachment  the  commanding  of- 

'Runkle  v.  United  States,  19  Ct.  '  McClure    Dig.    of    Opinions    70, 

CI.    (U.   S.)    396;    Swaim  v.   United  §  212. 

States,  28  Ct.  CI.  (U.  S.)  173.  "Article   75.     McClure  Dig.  Opin- 

*  Article  81.  ions  67. 


§    3405.]  NATURE    AXD    ORGANIZATION.  708 

ficer  shall  report  to  the  commanding  officer  of  the  department  and  he 
shall  thereupon  convene  a  court-martial  at  the  nearest  post  or  de- 
partment where  there  may  be  the  required  number  of  officers,  and 
shall  order  the  accused  and  witnesses  to  be  taken  to  the  place  where 
the  court  is  assembled."  The  provision  that  not  more  than  one-half 
of  the  court,  exclusive  of  the  President,  shall  be  junior  in  rank  to  the 
accused  officer,  when  it  can  be  avoided  without  injury  to  the  service, 
is  within  the  discretion  of  the  officer  convening  the  court;  and  in 
the  absence  of  a  showing  to  the  contrary  it  will  be  presumed  that  the 
discretion  was  properly  exercised,  and  the  fact  that  on  a  previous  oc- 
casion superior  officers  were  sent  to  make  up  the  court-martial  cannot 
affect  the  legality  of  the  court.* 

§'3405.  Garrison  court-martial. — "Every  officer  commanding  a 
garrison,  fort,  or  other  place,  where  the  troops  consist  of  different 
corps,  shall  be  competent  to  appoint,  for  such  garrison  or  other  place, 
courts-martial,  consisting  of  three  officers,  to  try  offenses  not  capi- 
tal."^ The  term  "other  place"  used  in  this  article  has  been  held  to  be 
intended  to  include  any  place,  situation  or  locality  such  as  post,  sta- 
tion, camp  or  halting  place  at  which  there  may  be  a  separate  com- 
mand or  detachment  in  which  different  corps  of  the  army  are  repre- 
sented. And  if  there  are  sufficient  officers,  other  than  the  command- 
ing officer,  in  the  command  so  situated,  then  such  commander  is 
authorized  under  this  article  to  convene  a  court-martial.  The  officer 
commanding  in  such  case  is  not  required  to  be  of  the  rank  of  field 
officer;  a  captain  or  even  a  lieutenant  who  is  the  officer  commanding 
is  duly  authorized  under  this  article  to  convene  the  court,  but  he  can- 
not detail  himself  with  two  others.^"  The  jurisdiction  of  these  regi- 
mental and  garrison  courts-martial  has  been  limited.  The  section  of 
the  statute  limiting  this  jurisdiction  reads  as  follows :  "Regimental 
and  garrison  courts-martial  and  summary  courts  detailed  under  ex- 
isting laws  to  try  enlisted  men  shall  not  have  power  to  try  capital 
cases  or  commissioned  officers,  but  shall  have  power  to  award  punish- 
ment not  to  exceed  confinement  at  hard  labor  for  three  months  or 
forfeiture  of  three  months'  pay,  or  both,  and  in  addition  thereto,  in 
the  case  of  non-commissioned  officers  reduction  to  the  ranks  and 
in   the    case    of   first-class    privates    reduction    to    second-class    pri- 

^  Article  76.  Sup.    Ct.    448;    McClure    Dig.    Opin- 

*Mullan  v.  United  States,  140  U.  ions,  §  206. 

S.   240,   11   Sup.  Ct.  788;    Swaim   v.  « Article  82. 

United    States,    165    U.    S.    553,    17  "  McClure  Dig.  Opinions  71. 


709  SUMMARY    COURT-MARTIAL.  [§§    3406,   3407. 

vates:  Provided,  That  a  summary  court  shall  not  adjudge  confine- 
ment and  forfeiture  in  excess  of  a  period  of  one  month,  unless  the  ac- 
cused shall  before  trial  consent  in  writing  to  trial  by  said  court,  but 
in  any  case  of  refusal  to  so  consent,  the  trial  may  be  had  either  by 
general,  regimental  or  garrison  court-martial,  or  by  said  summary 
court,  but  in  case  of  trial  by  said  summary  court  without  consent  as 
aforesaid,  the  court  shall  not  adjudge  confinement  or  forfeiture  of 
pay  for  more  than  one  month."^^ 

§  3406.  Summary  court-martial. — The  power  of  an  officer  com- 
manding a  garrison,  fort  or  other  place  has  undergone  some  changes 
by  which  such  officer  is  now  authorized  to  appoint  what  is  called  a 
summary  court  for  the  place  or  command,  or  in  his  discretion  for  each 
battalion  thereof.  This  summary  court  is  to  consist  of  one  officer  to 
be  designated  by  such  commander  who  shall  have  jurisdiction  to  try 
offenses  committed  by  the  enlisted  men  of  such  command,  where  such 
offense  is  not  capital,  and  except  when  the  accused  is  to  be  tried  by 
general  court-martial.  No  sentence  adjudged  by  such  summary 
court  shall  be  executed  until  it  shall  have  been  approved  by  the  officer 
appointing  the  court,  or  by  the  officer  commanding  for  the  time  be- 
ing, except,  however,  that  when  there  is  but  one  commissioned  officer 
present  with  a  command  he  shall  hear  and  finally  determine  such 
case.  This  summary  court  has  no  jurisdiction  over  a  soldier  holding 
a  certificate  of  eligibility  to  promotion ;  nor  as  to  non-commissioned 
officers  over  their  objection  without  the  authority  of  the  officer  com- 
petent to  order  their  trial  by  general  court-martial.  Such  cases  shall 
be  tried  before  the  garrison,  regimental  or  general  courts-martial.^^ 

§  3407.  Presiding  officer. — In  the  organization  of  British  courts- 
martial  a  president  is  appointed  who  is  a  distinct  official  from  the 
other  members.  In  the  earlier  practice  in  this  country  one  officer 
was  generally  especially  detailed  as  president  or  presiding  officer. 
But  under  the  practice  in  recent  years  the  president  is  not  appointed 
as  such  but  is  simply  the  senior  in  rank  and  presides  by  virtue  of  this 
seniority.  No  special  rank  or  qualifications  are  required  for  the 
position  of  presiding  officer  of  a  court-martial.  When  the  court  con- 
venes, if  the  senior  officer  appointed  is  absent,  or  in  the  case  of  his 

"Act  March  2,  1901.  piled  Stat.  961;    McClure  Dig.  Opin- 

"Act  June  18,  1898;  1  U.  S.  Com-     ions,  §  675. 


§§    3408,    3409.]  NATURE  AND   ORGANIZATION.  710 

subsequent  absence  for  any  cause,  in  either  event  the  officer  next  in 
rank  succeeds  to  the  position  of  president  of  the  court.^^ 

§  3408.  Presiding  officer — Functions. — The  presiding  officer  has 
practically  no  statutory  duties  aside  from  his  duties  as  a  member. 
It  is  his  duty  to  keep  order  and  conduct  the  business  of  the  court. 
It  is  his  place  to  speak  for  the  court  where  any  rule  of  action  has  been 
prescribed  either  by  law,  regulations,  orders  or  by  the  resolution  of 
the  court  itself.  It  is  his  statutory  duty  to  administer  the  proper 
oath  to  the  judge-advocate.^*  It  is  also  his  duty  to  convene  and  ad- 
journ the  court  on  a  vote  of  the  majority  or  at  the  hour  required  by 
the  articles  of  war.  Generally  speaking  he  performs  the  functions 
and  duties  of  the  chairman  of  an  ordinary  public  meeting,  or  of  the 
chairman  of  a  committee  appointed  by  a  duly  organized  body  whose 
functions  are  not  otherwise  specifically  defined.  He  is  not  author- 
ized to  make  any  ruling  on  the  admissibility  of  the  evidence,  and  can 
only  announce  such  ruling  as  the  decision  of  the  court.  He  has  no 
power  to  act  independently  nor  can  he  make  any  decision  or  take 
any  steps  contrary  to  the  will  of  a  majority  of  the  court.  He  has  no 
power  to  excuse  a  member  from  attendance  and  can  only  express 
his  views  and  vote  as  any  other  members  of  the  court.^^ 

§  3409.  Judge-advocate — ^Appointment. — The  judge-advocate  is 
appointed  by  the  officer  who  appoints  the  court-martial.^^  This  ap- 
plies to  the  officers  empowered  to  order  regimental,  garrison  or  sum- 
mary courts-martial  as  well  as  to  officers  authorized  to  convene  gen- 
eral courts-martial.^'^  Each  general  court-martial  convened  by  a  com- 
petent commander  should  have  appointed  a  separate  judge-advo- 
cate. While  the  same  officer  may  be  selected  to  perform  the  duties 
of  judge-advocate  for  different  courts-martial,  he  should  be  detailed 
anew  for  each  separate  one.  An  appointment  in  a  general  order  for 
a  particular  officer  to  act  as  judge-advocate  for  all  courts  that  are  to 
be  held  in  a  particular  command  would  be  irregular.^*  The  com- 
mander convening  the  court  may  relieve  a  judge-advocate  and  ap- 
point another;  but  it  is  not  regarded  as  good  policy  to  relieve  a 

'^McClure  Dig.  Opinions,   §  2043;      2046;    1  Winthrop   Military   Law  & 
1  Winthrop   Military   Law   &  Prec.     Prec.  249,  250. 
248.  ^8  Article  74. 

"Article  85.  "  McClure      Dig.      of      Opinions, 

"McClure  Dig.  Opinions.  §§  2044,     §  1520. 

"McClure   Dig.    Opinions,   §  1520. 


711  JUDGE-ADVOCATE.  [§§  3410,  3411. 

judge-advocate  during  a  prosecution.'^  Nor  would  it  be  proper  to 
make  such  change  in  the  office  of  judge-advocate  after  tlie  conclusion 
of  a  trial  simply  for  the  purpose  of  authenticating  a  record.  The 
gudge-advocate  who  officiated  at  the  close  of  the  trial  should  authenti- 
cate the  record.-*'  But  when,  by  reason  of  death  or  disability,  there 
is  no  judge-advocate  to  authenticate  the  record,  it  is  sufficient  to  show 
that  the  sentence  has  been  formally  approved  by  the  court  and  then 
authenticated  by  the  signature  of  the  president.^' 

§  3410.  Judge-advocate — ^Who  may  be  appointed. — Xo  special 
military  qualifications  are  required  to  render  a  person  eligible  for  the 
appointment  of  judge-advocate.  Any  commissioned  officer  may  be 
legally  appointed.  Thus,  a  chaplain,  surgeon  or  assistant-surgeon  is 
eligible."  Indeed,  a  judge-advocate  is  not  required  to  be  connected 
with  the  army  in  any  manner.  But  it  cannot  be  said  that  a  civilian 
may  be  detailed  or  appointed,  for  the  reason  that  a  military  officer  has 
no  power  or  authority  over  a  civilian  for  such  purpose ;  but  a  civilian 
may  be  engaged  or  employed  as  judge-advocate.  The  practice  of  em- 
ploying or  engaging  civilians  as  judge-advocates  has  been  more  com- 
mon in  the  navy  than  in  the  army.-*  A  person  should  not  be  ap- 
pointed as  judge-advocate  who  is  either  hostile  or  offensive  to  the 
accused.  This  officer  is  not  subject  to  challenge  and  it  is  an  act  of 
fairness  and  justice  to  the  accused  that  the  person  occupying  this 
important  position  have  no  prejudice  against  him,  and  that  he  should 
not  be  a  material  witness  in  the  case,  and  for  obvious  reasons  he 
should  not  be  in  a  position  to  reap  any  large  reward  or  promotion 
at  the  expense  of  the  accused.^*  He  should  not  be  personally  inter- 
ested either  as  accuser  or  prosecutor;  he  should  not  act  in  the  double 
capacity  of  prosecutor  and  adviser  to  the  court.^^  A  member  of  the 
court  is  not  authorized  to  act  in  the  capacity  of  judge-advocate  nor 
has  the  court-martial  itself  any  power  to  authorize  its  junior  member 
to  act  as  its  judge-advocate.^® 

§  3411.  Judge-advocate — Powers. — The  powers  and  duties  of  a 
judge-advocate  are  not  strictly  defined  by  statute;  they  are  a  growth 
rather  than  a  creation  and  may  be  considered  the  best  results  of  ex- 

'"McClure   Dig.   Opinions,    §  1523.  =°  McClure   Dig.   Opinions.    §  1528. 

=»McClure  Dig.  Opinions,  §§  1524,  =' McClure  Dig.  Opinions.  §  1529. 

1525.  ^  McClure    Dig.    Opinions,    S   1530. 

"Army  Regulations  954.  =*  McCIure    Dig.   Opinions,    §  1526. 
==  McClure  Dig.  Opinions,  §  1521. 


§§    3-112,    3413.]  NATURE  AND  ORGANIZATION.  712 

perience.  The  judge-advocate  has  power  to  prepare  a  case  for  trial 
after  the  charges  are  transmitted  to  him  by  the  proper  officer  for 
that  purpose.  He  cannot  entertain  or  act  upon  charges;  he  may  be 
directed  to  prepare  or  to  reform  the  charges  already  drawn;  but  he 
has  no  authority  to  modify  in  any  material  particulars,  in  the  absence 
of  directions  from  the  convening  officer,  the  formal  charges  pre- 
pared and  transmitted.  He  may  correct  obvious  mistakes  or  slight 
errors  in  names  or  dates  but  he  is  not  empowered  to  make  substan- 
tial amendments  in  the  allegations  nor  to  reject  or  withdraw  a  charge 
or  specification  or  substitute  a  new  and  distinct  charge  or  dismiss  or 
non  pros,  the  proceedings.-^ 

§  3412.  Judge-advocate — Duties  to  the  court. — The  prime  duty  of 
the  judge-advocate  is  to  prosecute  in  the  name  of  the  United  States.-® 
It  is  usually  his  duty  to  serve  the  charge  upon  the  accused  if  this 
has  not  been  done  before  his  appointment,  and  it  is  his  duty  to  sum- 
mon the  necessary  witnesses  for  the  trial  and  especially  those  whose 
names  are  appended  to  the  charge;  and  in  order  to  prevent  delay 
and  expedite  the  trial  he  is  authorized  to  summon  the  witnesses 
both  for  the  prosecution  and  for  the  accused,  and  where  depositions 
are  required  to  be  taken,  it  is  his  duty  in  concert  with  the  accused  to 
prepare  and  forward  necessary  interrogatories.-^  The  judge-advo- 
cate prepares  the  complete  record  required  by  the  army  regulations 
to  be  kept.  The  record  of  each  days  proceedings  should  be  prepared 
and  submitted  to  the  court  at  the  next  day  or  next  session  for  its 
approval  or  correction.^"  He  should  execute  the  orders  of  the  court 
and  notify  the  members  of  the  time  and  place  designated  by  the  pre- 
siding officer  for  re-assembling.^^  He  is  entitled  to  make  the  closing 
argument  to  the  court,  and  the  fact  that  the  accused  makes  no  argu- 
ment does  not  deprive  the  judge-advocate  of  his  right  to  address  the 
court  as  its  ad\dser,  and  the  court  itself  cannot  deny  him  this  right. 
But  he  is  not  authorized  to  read  or  present,  as  a  part  of  his  address, 
any  evidence  or  written  statements  not  introduced  upon  the  trial. ^^ 

§  3413.  Judge-advocate — Duties  to  accused. — The  judge-advocate 
acts  in  a  sort  of  dual  capacity.     WHiile  his  prime  duties  are  to  the 

""  McClure  Dig.  Opinions,  §§  1531-         '» McClure  Dig.  Opinions,  §  1537. 
1532.  ^1  McClure  Dig.  Opinions,  §  1538. 

"^Article  90.  ^^^ McClure  Dig.  Opinions,  §  1542. 

""  1     Winthrop     Military     Law     & 
Prec.  277. 


713  MEMBERS — QUALIFYIXG.  [§    3414. 

court  yet  he  has,  by  virtue  of  his  position,  certain  duties  to  perform 
toward  the  accused.  Thus,  Avhen  the  prisoner  has  pleaded  to  the 
charge  the  judge-advocate  is  so  far  counsel  for  the  prisoner  as  to  ob- 
ject to  any  leading  question  to  any  of  the  vritnesses,  and  to  any  ques- 
tion to  the  prisoner  the  answer  to  which  might  tend  to  criminate 
him.^^  When  the  accused  is  ignorant  and  inexperienced  rnd  with- 
out counsel,  it  is  the  duty  of  the  judge-advocate  to  see  that  he  docs  not 
suffer  from  any  ignorance  or  misconception  of  his  legal  rights,  and  he 
shall  award  to  him  the  opportunity  for  making  such  a  plea  and  such 
a  defense  as  will  best  show  the  merits  of  his  case  as  well  as  present 
any  extenuating  circumstances.  He  should  advise  the  prisoner  of 
his  right  to  testify  in  his  own  behalf  and  of  his  right,  where  it  ex- 
ists, to  plead  the  statute  of  limitations.^*  Where  the  accused  has 
intelligently  and  voluntarily  pleaded  guilty  the  judge-advocate  should 
advise  him  of  his  right  to  offer  evidence  in  explanation  or  extenua- 
tion of  the  offense  and  should  assist  him  in  securing  any  such  evi- 
dence.^^ 

§  3414.  Members — Qualifying. — "UTien  the  members  of  tlie  court 
are  finally  determined  upon,  they  must,  before  any  steps  in  the  trial 
are  taken,  be  duly  qualified.  The  judge-advocate  administers  to  each 
member  the  following  oath :  "You,  A  B,  do  swear  that  you  will  well 
and  truly  try  and  determine,  according  to  the  evidence,  the  matter 
now  before  you,  between  the  United  States  of  America  and  the  pris- 
oner to  be  tried,  and  that  you  will  duly  administer  justice,  without 
partiality,  favor  or  affection,  according  to  the  provisions  of  the  rules 
and  articles  for  the  government  of  the  armies  of  the  United  States, 
and  if  any  doubt  should  arise,  not  explained  by  said  articles,  then, 
according  to  your  conscience,  the  best  of  your  understanding,  and 
the  custom  of  war  in  like  cases.  And  you  do  further  swear  that  you 
will  not  divulge  the  sentence  of  the  court  until  it  shall  be  published 
by  the  proper  authority,  except  to  the  judge-advocate,  neither  will  you 
disclose  or  discover  the  vote  or  opinion  of  any  particular  member  of 
the  court-martial,  unless  required  to  give  evidence  thereof  as  a  wit- 
ness, by  a  court  of  justice,  in  a  due  course  of  law.  So  help  you  God."^*^ 
The  oath  may  be  administered  to  all  at  the  same  time,  but  each 
member  should  be  named  and  his  rank  stated.  The  members  may 
profitably  study  the  oath  with  reference  to  their  duties. 

^Article  90;   3  Greenl.  Ev.,  §  474.         =^  McClure  Dig.  Opinions,  §  1534. 
"McClure  Dig.  Opinions,  §  1533.  =»  Article  84. 


CHAPTER  CLXX. 

JUKISDICTION. 

Sec.  Sec. 

3415.  Generally.  3423.  Jurisdiction    over    civilians  — 

3416.  Jurisdiction — Non-territorial.  Limitations. 

3417.  Jurisdiction — Criminal.  3424.  Presumptions. 

3418.  Jurisdiction      of      regimental,  3425.  Burden  of  proof. 

garrison  or  summary  courts.     3426.  Judgments    of    courts-martial 

3419.  Jurisdiction — Acts  binding.  not    subject    to    review    by 

3420.  Jurisdiction  to  determine  civil  courts. 

whether   or  not  accused    is  3427.  Judgments    of    courts-martial 

a  soldier.  subject   to    review    by    civil 

3421.  Jurisdiction  over  civilians.  courts. 

3422.  Jurisdiction    over    civilians — 

Aiding. 

§■  3415,  Generally. — The  nature  of  the  jurisdiction  of  courts- 
martial  is  stated  by  Mr.  Greenleaf  thus:  "A  court-martial  is  a  court 
of  limited  and  special  jurisdiction.  It  is  called  into  existence  by 
force  of  express  statute  law,  for  a  special  purpose,  and  to  perform  a 
particular  duty;  and  when  the  object  of  its  creation  is  accomplished, 
it  ceases  to  exist.  The  law  presumes  nothing  in  its  favor.  He  who 
seeks  to  enforce  its  sentence,  or  to  justify  his  conduct  under  them, 
must  set  forth  affirmatively  and  clearly  all  the  facts  which  are  neces- 
sary to  show  that  it  was  legally  constituted  and  that  the  subject  was 
within  its  jurisdiction.  And  if,  in  its  proceedings  or  sentence,  it 
transcends  the  limit  of  its  jurisdiction,  the  member  of  the  court,  and 
its  officer  who  executes  its  sentence,  are  trespassers,  and  as  such  are 
answerable  to  the  party  injured,  in  damages  in  the  courts  of  common 
law."^ 

§  3416.  Jurisdiction — Non-territorial, — The  jurisdiction  of  courts- 
martial  is  not  confined  to  any  particular  place.    As  a  matter  of  neces- 

^3  Greenleaf  Ev.,  §  470;  Wise  S.)  193;  Smith  v.  Shaw,  12  Johns. 
V.  Withers,  3  Cranch  (U.  S.)  331;  (N.  Y.)  257;  Mills  v.  Martin,  19 
Watkins,     Ex     parte,     3     Pet.     (U.     Johns.  (N.  Y.)  7;  Brooks  v.  Adams, 

714 


715  CRIMINAL  JURISDICTION.  [§    3417. 

sity  it  is  as  migratory  as  either  the  army  or  navy.  The  same  neces- 
sity that  calls  these  courts  into  existence  gives  to  their  jurisdiction 
this  migratory  nature.  They  are  necessarily  concomitants  of  the 
army  and  navy.  "Military  jurisdiction  does  not  recognize  territorial- 
ity as  an  essential  element  of  military  offenses  but  extends  to  the 
.same  wherever  committed.^'  Under  this  principle  it  was  held  that  a 
court-martial  properly  convened  in  Texas  by  the  department  com- 
mander had  jurisdiction  over  an  offense  committed  while  the  army 
was  in  Mexico.^  Under  this  rule  a  general  court-martial  could  law- 
fully be  convened  at  any  point  or  place.  But  as  an  act  of  natural 
justice  it  should  be  convened  at  a  suitable  and  convenient  place  where 
the  accused  and  the  witnesses  are  located  or  near  the  place  where  the 
offense  was  committed.^ 

§  3417.  Jurisdiction — Criminal. — Courts-martial  being  bodies  of 
exceptional  and  restricted  power  can  only  take  cognizance  of  such  of- 
fenses as  are  recognized  by  the  military  code  as  existed  under  the  com- 
mon-law practice  and  by  virtue  of  the  statute.  Their  jurisdiction  is 
confined  exclusively  to  criminal  cases,  and  the  functions  of  these  courts 
are  to  assess  penalties  for  violations  of  military  and  naval  laws,  rules 
and  regulations  with  the  object  of  maintaining  discipline  in  the  army 
and  navy.  They  have  no  jurisdiction  to  entertain  actions  or  to  as- 
sess damages  in  cases  of  contracts  or  torts  or  otlier  civil  rights.  On 
the  nature  of  the  jurisdiction  of  this  court  in  this  respect  Col.  Win- 
throp  says:  "It  has  in  fact  no  civil  jurisdiction  whatever;  cannot 
enforce  a  contract,  collect  a  debt  or  award  damages  in  favor  of  an 
individual.  All  fines  and  forfeitures  which  it  decrees  accrue  to  the 
United  States.  Even  where  it  tries  and  convicts  an  accused  for  an 
offense  involved  in  an  obligation  incurred  or  injury  done  to  another 
person,  whether  a  military  person  or  a  civilian — as  in  the  case  of  an 
officer  guilty  of  dishonorable  conduct  in  the  non-payment  of  private 
debts,  in  that  a  soldier  who  has  stolen  from  a  comrade  or  trespassed 
upon  a  citizen — it  cannot  adjudge  that  the  debt  be  paid,  that  the 
property  be  returned,  or  that  its  pecuniary  value  or  the  amount  of 

11    Pick.    (Mass.)    441;    Duffield    v.  General  55;   Hamilton  v.  MoClaugh- 

Smith,  3  S.  &  R.  (Pa.)  590;  Hamil-  ry,  136  Fed.  445;  Military  Law  U.  S. 

ton  V.  McClaughry.  136  Fed.  445.  1901.  Par.  1797,  n.  3,  for  a  full  col- 

='McClure    Dig.    Opinions,    p.    296,  lection  of  cases. 

§  1041;    Winthrop's   Dig.    Opinions.  =2  Winthrop  Dig.  of  Opinions,  p. 

p.    322;    Manual    for    Court-Martial  322. 
1901,  p.  14;  4  Opinions  of  Attorney- 


§§'  3418,  3419.]  JURISDICTION.  716 

the  damage,  be  made  good  to  the  party  aggrieved.  Its  judgment  is 
a  criminal  sentence,  not  a  civil  verdict ;  its  proper  function  is  to  award 
punishment  upon  the  ascertainment  of  guilt."* 

§  3418.     Jurisdiction  of  regimental,  garrison  and  summary  courts. 

The  jurisdiction  of  these  courts  is  specifically  set  forth  by  statute 
as  follows:  "Regimental  and  garrison  courts-martial  and  summary 
courts  detailed  under  existing  laws  to  try  enlisted  men  shall  not  have 
power  to  try  capital  cases  or  commissioned  officers,  but  shall  have 
power  to  award  punishment  not  to  exceed  confinement  at  hard  labor 
for  three  months  or  forfeiture  of  three  months'  pay,  or  both,  and  in 
addition  thereto,  in  the  case  of  non-commissioned  officers  reduction 
to  the  ranks  and  in  the  case  of  first-class  privates  reduction  to  sec- 
ond-class privates :  Provided,  That  a  summary  court  shall  not  ad- 
judge confinement  and  forfeiture  in  excess  of  a  period  of  one  month, 
unless  the  accused  shall  before  trial  consent  in  writing  to  trial  by  said 
court,  but  in  any  case  of  refusal  to  so  consent,  the  trial  may  be  had 
either  by  general,  regimental  or  garrison  court-martial,  or  by  said 
summary  court,  but  in  case  of  trial  by  said  summary  court,  without 
consent  as  aforesaid,  the  court  shall  not  adjudge  confinement  or  for- 
feiture of  pay  for  more  than  one  month. "^ 

§  3419.  Jurisdiction — ^Acts  binding. — Military  jurisdiction  is  af- 
firmed to  be  of  two  kinds :  ( 1 )  That  which  is  conferred  and  defined 
by  statute;  (2)  that  which  is  derived  from  the  common  law  of  war. 
The  offenses  which  are  conferred  and  defined  by  statute  must  be 
tried  according  to  the  statutory  direction.  But  those  which  are  not 
defined  by  statute  are  tried  and  punished  under  the  common  law  of 
war.  The  first  jurisdiction  is  exercised  by  courts-martial  in  the 
armies  of  the  United  States  and  perhaps  of  Great  Britain ;  cases  fall- 
ing within  the  second  kind  of  jurisdiction  are  usually  tried  by  mili- 
tary commissions.  These  jurisdictions  are  applicable  in  war  with  for- 
eign nations  as  well  as  in  case  of  rebellion.  \YheTi  a  court,  exercising 
either  of  these  jurisdictions,  is  duly  appointed  and  regularly  con- 
vened and  its  forms  of  procedure  are  within  the  statutory  regulations, 
and  the  subject  matter,  as  well  as  the  person,  is  within  the  jurisdic- 
tion conferred,  then  the  judgment  or  sentence  pronounced  by  such 
court  is  binding  and  relief  can  only  be  had  through  the  forms  pre- 

*  1  Winthrop  Mil.  Law  &  Prec.  63.        '^  1  U.  S.  Comp.  Stat.  1901,  Art  83, 

p.  963. 


717  TO  DETERMINE  WHETHER  ACCUSED  IS  A  SOLDIER.       [§    3420. 

scribed  for  appeal  or  writ  of  error  or  by  means  of  pardon.®  The 
principle  of  the  validity  of  the  judgment  of  these  courts  acting  within 
their  jurisdiction  was  applied  in  a  case  where  the  accused  was  charged 
with  having  deserted  and  a  judgment  against  him  for  attempting  to 
desert  was  held  valid.  And  the  same  principle  has  been  held  in  many 
cases.^  Judge  Sawyer  stated  the  power  and  authority  of  courts-mar- 
tial thus :  "The  same  constitution  and  the  same  legislative  power 
which  conferred  civil  jurisdiction  on  the  national  judiciary,  also  con- 
ferred jurisdiction  over  military  and  naval  offenses  upon  courts- 
martial,  appointed  and  supervised  by  the  war  and  navy  departments. 
Each  is  supreme  while  acting  within  the  sphere  of  its  own  exclusive 
jurisdiction."*  Where  a  crime  is  committed  at  a  place  over  which 
Congress  has  power  to  legislate,  the  jurisdiction  of  the  federal  courts 
over  such  crime  is  exclusive.* 

§  3420.  Jurisdiction  to  determine  whether  or  not  accused  is  a 
soldier. — As  previously  shown  a  court-martial  has  power  to  determine 
its  jurisdiction.  But,  as  shown  elsewhere,  its  decision  on  this  ques- 
tion is  subject  to  review.  For  like  reasons  such  a  court  has  power 
to  determine  whether  or  not  the  accused  is  a  soldier  or  other  persons 
over  whom  it  may  exercise  jurisdiction.  This  power  is  inherent  for  ob- 
vious reasons.     To  support  this  jurisdiction  in  case  of  any  doubt 

"Vallandigham,  Ex  parte,  1  Wall.  55   N.   Y.   31;    Perault  v.   Rand,   10 

(U.   S.)    243;    Dynes  v.  Hoover,   20  Hun  (N.  Y.)  222;  Dunbar,  Ex  parte. 

How.  (U.  S.)   65.  14  Mass.   393;    Tyler  v.  Pomeroy,  8 

^Thompson  v.  Tolmie,  2  Pet.   (U.  Allen     (Mass.)     480;     Bright,     Ex 

S.)      157;      Houston     v.     Moore,     5  parte,  1  Utath  145;  White,  In  re,  9 

Wheat.  (U.  S.)  1;  Dynes  v.  Hoover,  Sawy.   (U.  S.)   49,  17  Fed.  723;   Bo- 

20  How.  (U.  S.)  65;  Cornett  v.  Wil-  gart.    In   re,    2    Sawy.    (U.    S.)    396, 

liams,   20  Wall.    (U.  S.)    226;   Reed,  3  Fed.  Cas.  No.  1596;  United  States 

Ex  parte,  100  U.  S.  13;   Mason,  Ex  v.  Mackenzie,  1  N.  Y.  Leg.  Obs.  371, 

parte,     105    U.    S.    696;     Keyes    v.  30  Fed.  Cas.  No.  18313. 

United  States,  109  U.  S.  336,  3  Sup.  ^  Bogart,   In  re,   2  Sawy.    (U.    S.) 

Ct.  202;   Wales  v.  Whitney,  114  U.  396,  409,  3  Fed.  Cas.  No.  1596. 

S.   564,   5   Sup.   Ct.    1050;    Smith   v.  "State  v.  Kelly,  76  Me.  331;  Com- 

Whitney,  116  U.  S.  167,   6  Sup.  Ct.  monwealth    v.    Clary,    8    Mass.    72; 

570;  Kurtz  v.  Moffitt,  115  U.  S.  487,  Painter  v.   Ives,   4  Neb.  122;    State 

6  Sup.  Ct.  150;   Grimley,  In  re,  137  v.   Dimick,  12  N.  H.  194;    Sinks  v. 

U.  S.  147,  11  Sup.  Ct.  54;  Carter  v.  Reese,   19   Ohio   St.    306;    O'Connor, 

Roberts,  177  U.  S.  496,  20  Sup.  Ct.  In  re.  37  Wis.  379;   Guiteau's  Case, 

713;    Brown   v.   Wadsworth,    15   Vt.  10     Fed.     161;      United     States     v. 

170;    Moore  v.  Houston,  3   S.  &  R.  Guiteau,  1  Mack.  (U.  S.)  498. 
(Pa.)  169,  197;  People  v.  Van  Allen, 


§   3421.]  JURISDICTION.  '^18" 

whatever  the  proof  should  show  explicitly  and  unequivocally  that  the- 
accused  is  either  a  soldier  or  other  person  over  whom  the  court  has 
jursidiction.    The  necessity  for  the  strict  adherence  to  this  principle- 
and  the  danger  of  any  departure  from  it  was  thus  stated  by  an  early 
English  case :    "It  is  not  disputed  that  a  court-martial  has  power  to- 
try  the  question,  whether  soldier  or  not?    That  power  must  be  in- 
separable from  their  jurisdiction.    But  they  exercise  it  at  their  peril ; 
and  it  behooves  them  to  have  the  most  explicit  and  unequivocal  proof 
that  a  man  is  a  soldier,  before  they  venture  to  put  him  on  his  trial 
for  any  offense  whatever.   If  it  shall  be  in  the  power  of  any  military 
commander  to  take  up  a  man  under  pretense  of  some  supposed  mili- 
tary offense,  and  it  shall  be  in  the  power  of  a  court-martial  to  give- 
themselves  jurisdiction  over  him,  by  deciding  him  to  be  a  soldier, 
upon  evidence  such  as  has  been  received  in  the  present  instance,  the-^ 
liberty  of  the  subject  is  at  an  end,  and  the  army  may,  as  soon  as  its- 
commander  shall  think  fit,  become  the  sovereign  power  of  this  coun- 

§3421.  Jurisdiction  over  civilians. — Generally  speaking,  the  jur- 
isdiction of  courts-martial  is  confined  to  enlisted  men  and  officers- 
of  the  army  and  navy,  and  in  special  statutory  cases  to  militia.  But 
there  are  instances  in  which  this  jurisdiction  has  been  exercised  over- 
civilians  or  persons  not  enlisted  either  in  the  army  or  navy.  But  the- 
jurisdiction  assumed  over  persons  other  than  soldiers  and  sailors  is 
under  the  principle  of  the  necessity  of  maintaining  discipline  in  the 
army.  "All  retainers  to  the  camp,  and  all  persons  serving  with  the- 
armies  of  the  United  States  in  the  field,  though  not  enlisted  soldiers, 
are  to  be  subject  to  orders  according  to  the  rules  and  discipline  of 
war.""  This  article  during  war  has  been  held  to  apply  to  teamsters, 
watchmen,  laborers,  engineers,  ambulance  drivers,  operators  and  many 

^'' Grant  v.  Gould,  2  H.  BI.  69,  86;  Reed,  Ex  parte,  100  U.  S.  13;  John- 
Tyler  v.  Pomeroy,  8  Allen  (Mass.)  son  v.  Sayre,  158  U.  S.  109,  15  Sup. 
480;  Military  Laws  U.  S.  1901,  Par.  Ct.  773;  Thomas,  In  re,  10  Int.  Rev. 
1797^  n_  Rec.    53.    23    Fed.    Cas.    No.    13888; 

"Article  63.    Houston  v.  Moore,  5  Henderson,  Ex  parte,  11  Fed.  Cas. 

Wheat.    (U.  S.)   1;   Martin  v.  Mott,  No.  6349;    Van  Vranken,  Ex  parte, 

12  Wheat.   (U.  S.)   19;   Reed,  In  re,  47  Fed.  888;  Davison,  In  re,  21  Fed. 

26   Int.  Rev.   Rec.   35,   20  Fed.   Cas.  618;     Craig,    In    re,    70    Fed.    969; 

No.   11636;    Bogart,  In  re,   2   Sawy.  Smith  v.    United   States.   26  Ct.   CI. 

(U.  S.)    396,  3  Fed.  Cas.  No.  1596;  (U.   S.)    143;    Military   Laws   U.    S. 

United  States  v.  Bogart,  3  Ben.   (U.  1901,  Par.  1796,  n. 
S.)     257,    24    Fed.    Cas.    No.    14616 


719  OVER  CIVILIANS.  ^   [§§  3422,  3423> 

others  when  serving  with  the  armies  in  the  field.  And  so  it  has  been 
held  that  the  employment  must  be  in  connection  with  the  army  in 
the  field  and  on  the  theater  of  hostilities.  It  has  not  been  rigorously 
applied  to  the  class  of  persons  known  as  retainers  to  the  camp  or  the- 
servants  of  officers.  These  persons  are  usually  punished  for  breaches 
of  discipline  by  dismissal  from  employment  and  expulsion  from  the- 
camp.  It  is  not  applied  to  civilians  who  are  employed  in  connection 
with  the  army  in  time  of  peace.  ^^ 

§  3422.  Jurisdiction  over  civilians — Aiding  an  enemy. — This  jur- 
isdiction over  ci^^ilians  is  not  limited  to  the  classes  in  the  preceding 
section.  Another  one  of  the  articles  of  war  provides:  "Wliosoever 
relieves  the  enemy  with  money,  victuals  or  ammunition,  or  knowingly 
harbors  or  protects  an  enemy,  shall  suffer  death,  or  such  other  punish- 
ment as  a  court-martial  may  direct.''^^*  The  next  article  also  provides 
that  "whosoever  holds  correspondence  with,  or  gives  intelligence  to, 
the  enemy,  either  directly  or  indirectly,  shall  suffer  death  or  such 
other  punishment  as  a  court-martial  may  direct."  Under  these  sec- 
tions it  has  been  held  that  the  term  "whosoever"  applied  to  civilians 
the  same  as  to  military  persons,  and  that  all  the  inhabitants  of  the 
states  in  rebellion  were  prima  facie  enemies  within  the  meaning  of 
these  articles  except  such  as  entered  military  service.  The  act  of 
"relieving  the  enemy"  is  to  be  distinguished  from  that  of  trading 
with  the  enemy  in  violation  of  the  laws  of  war ;  the  first  is  restricted 
to  certain  particular  forms  of  relief;  the  second  includes  all  commer- 
cial intercourse  not  authorized  by  the  government.^*  So,  it  was  held 
that  holding  correspondence  with  the  enemy  was  completed  by  writ- 
ing and  sending  a  letter  to  an  inhabitant  of  an  insurrectionary  state 
during  war ;  it  was  not  necessary  to  show  that  the  letter  reached  its. 
destination.^^  But  to  constitute  the  offense  of  giving  intelligence  to 
the  enemy  it  is  necessary  to  establish  the  fact  that  material  informa- 
tion was  actually  communicated  to  the  enemy  either  verbally,  in  writ- 
ing or  by  signals.^'' 

§  3423.  Jurisdiction  over  civilians — Limitations. — This  doctrine 
of  the  jurisdiction  of  courts-martial  over  civilians  has  its  limitations. 

"McClure    Dig.  Opinions,    §§  56,         ^"^  McClure  Dig.  of  Opinions,  §  62; 

57.  Rex  V.  Hensey,  1  Burr.  642;  Rex  v. 

"Article  45.  Stone,  6  Term  R.  527. 

"  McClure  Dig.  Opinions,  §§  25,  "  McClure  Dig.  of  Opinions,  §  63., 
26. 


§•  3424.]  JURISDICTION.  720 

The  courts  will  not  permit  the  military  authorities  to  usurp  the  func- 
tions of  civil  government  in  localities  not  in  a  state  of  war,  and  where 
there  is  no  necessity  for  martial  Liw  or  military  rule.  Such  jurisdiction 
is  usually  confined  to  the  territory  of  the  actual  theater  of  war,  to  the 
place  where  the  civil  tribunals  are  closed  and  where  the  civil  power  is 
superceded  by  force.  In  such  place  the  President  of  the  United 
States  has  the  right  to  govern  by  martial  law  through  his  military 
officers;  but  in  all  other  places  and  at  all  other  times  such  martial 
law  is  excluded  by  the  civil.  This  military  jurisdiction  cannot  be 
exercised  to  the  extent  of  the  denial  of  the  right  of  trial  by  jury  in  a 
locality  or  state  where  the  federal  authority  is  unopposed  and  where 
the  federal  courts  are  open  for  the  trial  of  offenses  and  the  redress 
of  grievances. ^'^ 

§  3424.  Presumptions. — Courts-martial  are  regarded  as  of  such 
limited  and  special  jurisdiction  and  invested  powers  that  the  law  will 
raise  no  presumptions  in  favor  of  their  legality. ^^  But  where  a  de- 
cision of  a  court-martial  is  attacked  or  called  in  question  in  any  other 
court,  there  is  no  presumption  r)f  law  that  such  court-martial  exceeded 
its  jurisdiction,  but  such  fact  must  be  manifestly  shown.^^  Courts- 
martial  belong  to  that  class  of  courts  of  inferior  and  limited  juris- 
diction that  has  no  presumptions  in  favor  of  its  jurisdiction ;  and  the 
party  who  seeks  any  advantage  of  the  proceedings  must  show  affirm- 
atively its  jurisdiction. 2''  On  the  peculiar  jurisdiction  of  courts- 
martial  an  early  New  York  case  said :  "That  a  court-martial  is  a 
court  of  special  and  limited  jurisdiction  must  be  evident  upon  the 
slightest  reflection.  It  is  called  into  existence  for  special  and  tempo- 
rary purposes,  and  when  those  purposes  are  answered,  it  is  dissolved 
and  disappears.  That  it  is  limited  to  particular  offenders  and  offenses, 
and  to  those  only,  is  equally  certain.  All  its  powers  are,  therefore, 
special  and  limited.^'^^ 

"Milligan,  Ex  parte,  4  Wall.    (U.  fin  v.  "Wilcox,  21  Ind.  370;    McRob- 

S.)    2;    Kemp,    In   re,    16   Wis.    359,  erts.  Ex  parte,  16  Iowa  600. 

382;    Duffield   v.    Smith,   3    S.    &   R.  "Brooks    v.     Daniels,     22     Pick. 

(Pa.)    590;    Shoemaker  v.  Nesbit,   2  (Mass.)      498;      Hamilton     v.      Mc- 

Rawle   (Pa.)    201;   Antrim's  Case,  5  Claughry,  136  Fed.  445. 

Phila.   (Pa.)    278;   Jones  v.  Seward,  "Washburn    v.    Phillips,    2    Mete. 

40  Barb.  (N.  Y.)  563;  Martin,  In  re,  (Mass.)   296. 

45    Barb.     (N.    Y.)     142;     Smith    v.  =»  Barrett  v.  Crane,  16  Vt.  246. 

Shaw,  12  Johns.   (N.  Y.)   257;   Mills  =' Mills  v.   Martin,   19   Johns.    (N. 

V.    Martin,    19    Johns.     (N.    Y.)     7;  Y.)    7;    Brooks  v.   Adams,   11   Pick. 

Johnson  v.  Jones,  44  111.  142;  Grif-  (Mass.)  441;  Wright,  In  re,  34  How. 


721  BDRDEX  OF  PROOF.  [§§   3425,  3426. 

§  3425.  Burden  of  proof. — As  shown  by  the  preceding  section  no 
presumptions  are  indulged  in  favor  of  the  jurisdiction  of  courts- 
martial.  From  this  it  follows  that  judgments  of  such  courts  may  be 
attacked  and  called  in  question  in  any  collateral  proceeding.'--  And 
where  a  judgment  of  such  court  is  so  attacked  the  burden  is  upon  the 
officer  or  person  claiming  any  right  or  privilege  by  virtue  thereof  to 
show  affirmatively  that  the  court  rendering  the  judgment  was  legally 
constituted  and  that  it  had  jurisdiction  of  both  the  person  and  the 
offense,  and  that  the  judgment  rendered  by  it  was  conformable  to  the 
law.-^  Of  this  principle  a  federal  court,  in  a  very  recent  case,  said: 
"Again,  so  jealous  are  all  English-speaking  nations  of  the  liberty  of 
their  subjects,  where  a  respondent  in  habeas  corpus  admits  the  re- 
straint charged  against  him,  he  must  justify  by  basing  his  right  of 
restraint  upon  the  exercise  of  some  provision  of  positive  law  binding 
upon  him,  or  the  writ  must  issue  and  the  person  restrained  have  his 
liberty.  It  follows,  therefore,  notwithstanding  the  judgment  of  con- 
viction by  the  military  court  set  forth  in  the  return  of  respondent 
and  admitted  by  petitioner,  if,  as  claimed  by  counsel  for  petitioner, 
the  facts  essential  to  a  valid  exercise  of  the  military  power  conferred 
by  the  58th  article  of  war,  to  wit,  the  then  existence  of  a  state  of  war, 
insurrection,  or  rebellion  in  China,  the  place  where  the  offense  was 
committed  and  the  trial  had,  is  not  shown,  the  writ  must  go  and  the 
petitioner  be  granted  his  liberty."^* 

§  3426.  Judgments  of  courts-martial  not  subject  to  review  by  civil 
courts. — The  judgment  of  a  court-martial  stands  on  the  same  footing 
as  judgments  of  courts  of  inferior  and  limited  jurisdiction.  The  gen- 
eral rule  as  to  the  conclusiveness  of  the  judgments  of  such  courts  is 
that  where  they  act  within  their  jurisdiction  any  judgment  or  decree 
then  rendered  is  binding  and  conclusive.  The  Supreme  Court  of  the 
United  States  said  of  a  judgment  rendered  by  court-martial:  "With 
the  sentences  of  courts-martial  which  have  convened  regnlarly,  and 
have  proceeded  legally,  and  by  which  punishments  are  directed,  not 
ff^rbidden  by  law,  or  which  are  according  to  the  laws  and  customs  of 
the  sea,  civil  courts  have  nothing  to  do,  nor  are  they  in  any  wa}^ 

Pr.    (N.  Y.)   207;   Grant  v.  Gould,  2  -'Dynes  v.   Hoover,    20   How.    (U. 

H.  Bl.  69.  S.)  65;  Runkle  v.  United  States,  122 

"Watkins,    Ex   parte,    3    Pet.    (U.  U.  S.  543,  7  Sup.  Ct.  1141;  Hamilton 

S.)  193;  Wise  v.  Withers.  3  Cranch  v.  McClaughry.  136  Fed.  445. 

(U.  S.)  331;  Hamilton  v.  McClaugh-  =*  Hamilton    v.     McClaughry,    136 

ry,  136  Fed.  445.  Fed.  445. 

Vol.  4  Elliott  Ev.— 46 


>;   3427.]  JURISDICTION.  722 

alterable  by  them.  If  it  were  otherwise,  the  civil  courts  would  vir- 
tually administer  the  rules  and  articles  of  war,  irrespective  of  those 
to  whom  that  duty  and  obligation  has  been  confided  by  the  laws  of 
the  United  States,  from  whose  decisions  no  appeal  or  jurisdiction  of 
any  kind  has  been  given  to  the  civil  magistrate  or  civil  courts."^^  In 
a  comparatively  recent  case  the  same  court  said  on  this  subject: 
"The  court-martial  having  jurisdiction  of  the  person  accused  and  of 
the  offense  charged,  and  having  acted  within  the  scope  of  its  lawful 
powers,  its  decisions  and  sentence  cannot  be  reviewed  or  set  aside  by 
the  civil  courts,  by  writ  or  habeas  corpus  or  otherwise."-*'  The 
Massachusetts  Supreme  Court  said:  "No  acts  of  military  officers  or 
tribunals  within  the  scope  of  their  jurisdiction,  can  be  revised,  set 
aside,  or  punished,  civilly  or  criminally,  by  a  court  of  common  law. 
And  in  the  same  case  this  court  say :  "With  acts  affecting  military 
rank  or  status  only,  the  offenses  against  articles  of  war  or  military 
discipline,  the  civil  courts  have  uniformly  declined  to  interfere.^'' 

§  3427.  Judgments  of  courts-martial  subject  to  review  by  civil 
courts. — There  are  certain  judgments  or  sentences  pronounced  by 
courts-martial  over  which  the  civil  courts  may  have  control.  The 
class  of  judgments  of  such  courts  which  are  subject  to  the  control  of 
civil  courts  is  limited  to  such  judgments  or  sentences  that  are  pro- 
nounced where  the  court  was  without  jurisdiction  over  the  subject 
matter,  or  when  the  punishment  inflicted  was  forbidden  by  law.  In 
all  such  cases  the  party  aggrieved  may  apply  to  a  civil  court  for  re- 
dress and  relief  will  be  granted  where  it  is  made  to  appear  that  the 

™  Dynes   v.   Hoover,   20   How.    (U.  stone  v.  Sutton,  1  Term  R.  510,  546; 

S.)    65,    82;    Milligan,    Ex    parte,    4  Leonards     v.      Shields,      1      McArt. 

Wall.   (U.  S.)   2;  Johnson  v.  Sayre,  Court    Martial    159,    n.;    Bailey    v. 

158  U.  S.  109,  15  Sup.  Ct.  773;  Reed,  Warden,  4  M.  &  S.  400;    Vallandig- 

Bx  parte,  100  U.  S.  13;   Mason,  Ex  ham,  Ex  parte,  1  Wall.  (U.  S.)  243; 

parte,  105  U.  S.  696;  Smith  v.  Whit-  Reg.   v.    McCarthy,    14    W.    R.    918; 

ney,  116  U.  S.  167,  6  Sup.  Ct.  570;  Poe,  In  re,  5  B.  &  Ad.  681;    Grant 

Corbett,  In  re,  9  Ben.    (U.  S.)    274,  v.  Gould,  2  H.  Bl.  69;  Mansergh,  In 

277,  6  Fed.   Cas.  No.   3219;    Barrett  re,  1  Best  &  S.  400;    De  Hart  Mili- 

V.  Hopkins,  2  McCrary  (U.  S.)  129;  tary  Law  226;   1  Winthrop  Military 

People  V.   Hoffman,   166   N.   Y.   462,  Law   &   Prec.   55,   et  seq.;    McClure 

473,  60  N.  E.  187;  United  States  v.  Dig.  of  Opinions  283,  and  notes; Dig. 

Mackenzie,   1    N.   Y.   Leg.   Obs.   371,  Opin.  J.  A.  G.,  Par.  1024. 

30  Fed.  Cas.  No.  18313;    Perault  v.  -"Johnson  v.  Sayre,  158  U.  S.  109. 

Rand,  10  Hun   (N.  Y.)   222;   Barwis  15  Sup.  Ct.  773. 

T.   Keppel,    2  Wils.    314;    Mansergh,  "^  Tyler     v.      Pomeroy,      8     Allen 

In  re,  1  Best  &  S.  400,  406;    John-  (Mass.)  480. 


723  REVIEW    BY    CIVIL    COURTS.  [^    34?7. 

acting  court-martial  had  no  jurisdiction.  The  rule  on  this  subject 
was  stated  by  the  United  States  Supreme  Court  thus:  "But  we  re- 
peat, if  a  court-martial  has  no  jurisdiction  over  the  subject  matter 
of  the  charge  it  has  been  convened  to  try,  or  shall  inflict  a  punish- 
ment forbidden  by  law,  though  its  sentence  be  approved  by  the  officers 
having  a  revisory  power  of  it,  civil  courts  may,  in  an  action  by  a 
party  aggrieved  by  it,  inquire  into  the  want  of  the  court's  jurisdiction, 
and  give  him  redress."-*  This  power  of  the  civil  courts  to  review  the 
proceedings  of  courts-martial  was  extended  to  a  case  in  New  York 
where  an  accused  before  a  court-martial  was  denied  the  right  to  have 
counsel.*® 

"Dynes  v.  Hoover,  20  How.  (U.  Daniell,  50  N.  Y.  274;  Hamilton  v. 
S.)  65,  82;  Grimley,  In  re,  137  U.  S.  McCIaughry,  136  Fed.  445;  Grant  v. 
147,  150,  11  Sup.  Ct.  54;  People  v.  Gould.  2  H.  Bl.  69;  Harman  v.  Tap- 
Hoffman,  166  N.  Y.  462,  475,  60  N.  penden,  1  East  555;  Frye  v.  Ogle, 
E.  187;  Durham  v.  United  States,  4  London  Mag.  1746,  pp.  124,  576; 
Hayw.  (Tenn.)  54;  Dunbar,  Ex  Swinton  v.  Malloy,  cited  in  1  Term 
parte,  14  Mass.  393;  Tyler  v.  Pom-  R.  537;  Wales  v.  Whitney,  114  U.  S. 
eroy,  8  Allen  (Mass.)  480;  State  v.  564,  5  Sup.  Ct.  1050. 
Davis,   4  N.   J.  L.   311;    People   t.  » People  v.  Van  Allen,  55  N.  Y.  31. 


CHAPTER  CLXXI. 

MATTERS    OF    PRACTICE, 

Sec.  Sec. 

3428.  Arrest.  3432.  Privilege  of  counsel. 

3429.  Close  and  open  arrest.  3433.  Status  and  privilege  of  coun- 

3430.  Report  of  arrest  and  notice  of  sel. 

charge.  3434.  Right  of  challenge. 

3431.  Right     of     accused     to     have     3435.  Commander  as  prosecutor. 

counsel.  3436.  Commander  not  prosecutor. 

§  3428.  Arrest. — The  court-martial  has  nothing  whatever  to  do 
with  the  arrest;  it  formulates  no  charge,  returns  no  indictment,  is- 
sues no  warrant.  The  arrest  is  made  by  or  at  the  instance  of  officers 
before  the  court  is  organized,  and  by  those  who  may  have  nothing 
whatever  to  do  with  the  organization  of  the  court  or  the  subsequent 
trial.  A  military  arrest  is  usually  made  either  by  a  verbal  or  written 
order.  The  written  order  is  more  preferable  and  is  usually  the  method 
adopted,  except  where  the  offense  is  committed  in  the  presence  of  n 
commanding  officer  and  he  orders  the  immediate  arrest  of  the  of- 
fender. The  articles  provide  that  officers  charged  with  crime  shall 
be  arrested  and  confined  in  their  barracks,  quarters  or  tents,  and  that 
soldiers  charged  with  crimes  shall  be  confined  until  tried  by  court- 
martial,  or  released  by  proper  authority.^  The  confinement  con- 
templated in  this  article  does  not  imply  either  a  distinction  by  force 
or  confinement  by  imprisonment  except,  perhaps,  in  extreme  cases. 
When  the  arrested  officer  properly  conducts  himself  the  restraint 
should  not  be  so  severe  as  to  prevent  the  proper  preparation  of  hi? 
defense.  An  arrested  officer  is  to  be  confined  to  his  barracks,  quarters 
or  tent,  that  is,  his  own  military  habitation  or  lodgings,  and  he  cannot 
ordinarily  be  removed  from  these  and  confined  in  quarters  or  tents 
distant  from  his  own.^ 

§  3429.     Close  and  open  arrest. — Military  authorities  do  not  con- 
strue the  provision  for  confinement  in  Article  65  as  mandatory.    No 

'Articles  65,  66,  70.  ^Winthrop  Military  Law  &  Prec. 

153. 

734 


735  ARREST — NOTICE  OF  CHARGE.     [§§  3430,  3431. 

penalty  is  provided  for  any  failure  to  so  confine  the  arrested  oflBcer. 
But  where  the  crime  is  heinous  or  the  offense  outrageous  the  officer 
may  be  confined  strictly  to  his  tent,  quarters  or  barracks.  But  in 
the  discretion  of  the  commanding  officer,  and  where  the  offense  is 
slight,  and  the  imprisonment  may  be  of  some  considerable  duration 
before  trial,  the  exceptions  may  be  made  to  the  rule  and  the  limits 
extended  and  the  officer  have  the  privilege  of  what  is  termed  an  open 
arrest.  In  such  case  he  has  the  privilege  of  going  at  liberty  under 
the  duty  of  returning  to  his  quarters  at  the  specified  times  imposed 
by  the  commanding  officer.^ 

§  3430.  Report  of  arrest  and  notice  of  charge. — It  is  made  the 
duty  of  every  officer  to  whose  charge  a  prisoner  is  committed  to  re- 
port to  the  commanding  officer  the  name  of  such  person,  the  crime 
charged  against  him  and  the  name  of  the  officer  committing  him." 
And,  except  at  remote  military  posts  or  stations,  the  officer  by  whose 
order  another  officer  is  arrested  shall  see  that  a  copy  of  the  charges 
on  which  he  is  to  be  tried  is  served  up.m  him  within  eight  days  after 
his  arrest,  and  that  he  be  brought  to  trial  within  ten  days  thereafter 
unless  prevented  by  the  necessities  of  the  service,  and  in  such  case 
he  should  be  brought  to  trial  within  thirty  days  after  the  expiration 
of  the  ten  days.  In  case  of  failure  to  do  either  of  these  the  arrest 
shall  terminate,  but  the  offender  may  be  tried  at  any  time  within 
twelve  months  after  his  release  from  arrest.'  The  charge  to  be  served 
on  the  arrested  officer  is  sufficient,  although  not  in  exact  legal  form, 
and  is  intended  to  be  amended  or  redrawn.^ 

§  3431.  Right  of  accused  to  have  counsel. — The  trend  of  all  mod- 
ern jurisprudence  is  to  permit  an  accused  or  a  person  against  whom 
any  charge  is  made  that  involves  his  person,  his  property,  his  politi- 
cal right  or  liberty  to  be  represented  by  counsel  before  the  tribunal 
commission  or  committee  constituted  or  appointed  to  hear  and  de- 
termine the  accusation  or  charge  against  him.  But  this  liberal  rule 
was  denied  in  the  earlier  practice  in  courts-martial.  This  right  was 
expressly  denied  by  the  former  military  regulations  in  the  state  of 
New  York;  but  the  regulations  provided  that  a  lawyer  might  be 

'Winthrop  Military  Law  &  Free.  "Article     71;     McClure     Dig.     of 

155.  and  notes;  Benet  Military  Law  Opinions     60;     Winthrop     Military 

&  Court-martial   46;    De   Hart  Mili-  Law  &  Free.  226. 

tary  Law  71,  et  seq.  "McClure  Dig.  of  Opinions  180. 

*  Article  68. 


§§  3432,  3433.]  matters  of  ptuctice.  726 

tolerated  as  a  friend  of  the  accused,  but  it  was  left  optional  with  such 
a  court  to  so  tolerate  the  counsel.  But  it  was  held  by  the  court  of 
appeals  that  this  provision  in  military  regulations  was  in  conflict 
with  the  state  constitution  which  provided  that  the  accused  shall  be 
allowed  to  appear  and  defend  in  person  and  with  counsel  "in  any 
trial  in  any  court  whatever.''^  This  rule  is  now  practically  uni- 
versally followed  in  all  court-martial  proceedings.^  Some  writers 
still  maintain  that  the  admission  of  counsel  on  behalf  of  the  accused 
is  a  privilege  and  not  a  right.  But  they  admit  that  the  privilege  is 
almost  invariably  accorded  and  granted  as  a  matter  of  course." 

§  3432.  Privilege  of  counsel. — Under  the  earlier  and  stricter  rules 
the  prisoner's  counsel  was  little  more  than  an  amicus  curiae.  He  was 
seated  near  the  prisoner  and  wrote  the  questions  intended  to  be  asked 
upon  slips  of  paper  and  handed  these  to  the  prisoner,  which  were  in 
turn  passed  to  the  judge-advocate.  He  was  never  allowed  to  address 
the  court,  and  any  remarks  or  arguments  must  be  presented  in  writ- 
ing.i" 

§  3433.  Status  and  privileges  of  counsel. — But  a  better  and  more 
liberal  rule  has  gradually  been  introduced  into  the  practice,  and  it  is 

o-enerally  recognized  now  that  counsel  have  about  the  same  standing 
and  recognition  in  courts-martial  as  in  other  courts.  The  modern 
rule  as  to  the  status  of  counsel  is  stated  as  follows:  "But  the  more 
recent  radical  reconstruction  of  the  British  military  law  has  done 
away  with  the  previous  usage  in  this  regard;  and  in  the  rules  of 
procedure  it  is  declared  that  the  counsel  both  of  the  prisoner  and  of 
the  prosecutor  at  a  military  trial  shall  have  the  same  right  as  the 
party  for  whom  he  appears  to  call  and  orally  examine  and  cross-ex- 
amine witnesses,  as  well  as  to  make  objections  and  statements,  put 
in  pleas,  and  address  the  court.     As  to  the  practice  before  courts- 

'  People  V.  Van  Allen,  55  N.  Y.  31 ;  Twitchell  v.  Commonwealth,  7  Wall 

People  V.   Hoffman,   166  N.  Y.   475.  (U.  S.)    321,  326;   Edwards  v.  Elli 

60    N.   E.    187;    14    Green    Bag    99;  ott,    21    Wall.     (U.    S.)     532,    557 

''Winthrop  Military  Law  &  Prec.  Walker   v.    Sauvinet   92   U.    S.    90 

1274,  et  seq.;    Benet  Military   Law  Pearson  v.  Yewdall,  95  U.   S.   294 

&  Court  Martial  65;   De  Hart  Mill-  1   Winthrop   Military   Law   &   Prec. 

tary  Law  132-134;   Dig.  Opin.  J.  A.  241. 
G.,  Pars.  984,  985,  987.  '°De  Hart  Military  Law,  p.   132; 

» Barron  v.  Mayor  of  Baltimore,  7  1   Winthrop   Military   Law  &   Prec 

Pet.     (U.    S.)     243;    Watklns,    Ex  242;   Benet  Military  Law  &  Court 

parte.    7    Pet.     (U.    S.)     568.    573;  Martial  65. 


•727  CHALLENGING    MEMBERS    OF    COURT.  [§    3434. 

martial  of  the  United  States,  while  the  doctrine  in  question  is  quite 
strictly  laid  down  in  the  treatises  and  in  sundr}'  orders,  the  actual 
procedure  has  become  much  more  indulgent  and  reasonable;  not 
merely  military  but  professional  counsel  being  in  general  permitted 
to  examine  the  witnesses  and  address  the  court  without  objection  on 
the  part  of  the  members.  Occasionally,  indeed,  the  old  rule  is  in- 
sisted upon  at  the  outset,  though  relaxed  later;  but  more  frequently 
much  the  same  license  is  allowed  at  all  stages  as  at  an  ordinary  crim- 
inal trial,  subject,  however,  to  a  restriction  of  the  privilege  when 
counsel  by  their  prolixity,  captiousness,  disrespectful  manner,  or  other 
objectionable  trait,  fatigue  or  displease  the  court.  Thus,  in  practice, 
the  old  rule  is  mainly  held  in  reserve,  to  be  enforced  by  the  court  at 
its  discretion  in  exceptional  cases.  Objection  to  the  reading  of  the 
final  address,  or  to  a  closing  oral  or  written  argument,  by  the  coun- 
sel, is  now  of  the  rarest  occurrence."  ^^ 

§  3434.  Right  of  challenge. — The  accused  may  challenge  members 
of  a  court-martial  for  cause  stated  to  the  court,  and  the  court  shall 
then  determine  the  relevancy  and  validity  of  the  challenge,  but  shall 
not  receive  a  challenge  to  more  than  one  member  at  a  time.^^  This 
provision  cannot  apply  to  what  are  known  as  field  officers'  courts  and 
summary  courts  for  the  reason  that  these  are  composed  of  one  officer 
or  person  only  and  there  is  no  competent  authority  to  pass  upon  the 
sufficiency  or  validity  of  the  challenge.  It  has  been  regarded  as  a 
sufficient  ground  of  challenge  that  the  officer  challenged  is  the  author 
of  the  charges.  But  the  mere  fact  that  the  officer  challenged  is  to 
be  a  witness  is  not  in  general  regarded  as  sufficient  ground  of  chal- 
lenge. So,  the  fact  that  a  member  of  the  court  signed  the  charges 
is  not  sufficient  ground  for  a  challenge  unless  it  is  shown  that  he  pre- 
ferred the  charges  as  the  accuser  or  prosecutor.  Generally  it  is  a 
ground  for  challenge  where  there  is  sufficient  cause  to  give  rise  to  a 
presumption  of  prejudice.  And  a  member  who  shall  forthwith  be 
entitled  to  promotion  in  case  the  accused  is  convicted  and  dismissed, 
is  subject  to  challenge.^^ 

"  Winthrop  Military  Law  &  Prec.  in  the  Admiral  Schley  Inquiry,  14 
243.  Green  Bag    136. 

"Art.  88;  McClure  Dig.  of  Opin-  "Art.  79;  McClure  Dig.  of  Opin- 
ions 76.  An  interesting  feature  ions  47,  §  237;  Keyes  v.  United 
of  the  right  of  challenge  is   found     States.  15  Ct.  CI.   (U.  S.)   532;   Dig. 

Opin.  J.  A.  G.,  Par.  210. 


§§  3435,  3436.]  matters  or  practice.  728 

§  3435.  Commander  as  prosecutor. — The  rule  for  determining 
when  such  commander  is  the  accuser  or  prosecutor  is  thus  stated: 
"On  the  other  hand,  where  he  himself  initiates  the  charge,  out  of  a 
hostile  animus  toward  the  accused  or  a  personal  interest  adverse  to 
him,  or  from  a  similar  motive  adopts  and  makes  his  own  a  charge 
initiated  by  another,  he  is  to  be  deemed  an  'accuser  or  prosecutor' 
within  the  article.  Nor  is  he  the  less  so  where,  though  he  has  no  per- 
sonal feeling  or  interest  in  the  case,  he  has  become  possessed  with  the 
conviction  that  the  accused  is  guilty  and  deserves  punishment,  and  in 
this  conviction  initiates  or  assumes  as  his  own  the  charge  or  the  prose- 
cution. For  in  this  case  equally  as  in  the  former  he  is  unfit  to  be  a 
judge  upon  the  merits  of  the  case;  in  the  one  instance  he  is  too  much 
prejudiced  to  be  qualified  to  do  justice;  in  the  other  he  has  con- 
demned the  accused  beforehand."^* 

§  3436.  Commander  not  prosecutor. — The  fact  that  a  department 
commander  orders  a  court-martial  does  not  make  him  an  accuser  or 
prosecutor  in  the  sense  of  the  72d  or  7'3d  Articles  of  War,  nor  is 
he  such  accuser  or  prosecutor  when,  upon  information  of  miscon- 
duct, he  orders  the  acting  judge-advocate  of  the  department,  or 
the  colonel  commanding  the  regiment  to  institute  the  proceedings 
against  the  offender.  But  it  is  not  necessary  that  the  commander 
sign  the  charges  in  order  to  constitute  him  the  accuser  or  prosecutor. 
Nor  is  he  regarded  as  the  accuser  or  prosecutor  where  he  causes  the 
charges  to  be  preferred  and  convenes  the  court-martial  by  direction 
of  the  secretary  of  war  or  other  other  competent  military  superiors.^'"' 

"Military  Laws  of  the  U.  S.  "Dig.  Opin.  J.  A.  G.,  Pars.  187, 
1901,  Par.  1790,  n.  188,  189. 


» 


CHAPTER  OLXXII. 


PLEADINGS. 


Sec.  Sec. 

3437.  Generally.  3440.  Statement  of  charge. 

3438.  Certainty.  3441.  Time  and  place. 

3439.  Charge  and  specification.  3442.  Answer. 

§  3437.  Generally. — It  is  not  within  the  scope  of  this  work  to  give 
directions  and  forms  in  practice  or  the  details  of  procedure  in  courts- 
martial.  But  it  may  not  be  out  of  place  to  consider  so  much  of  the  pro- 
cedure and  of  the  pleadings  as  may  aid  in  applying  the  rules  of  evi- 
dence. The  law  recognizes  that  the  persons  composing  courts-martial 
and  those  acting  as  judge-advocates  are  neither  learned  in  the  law 
nor  skilled  in  the  technicalities  of  pleadings,  and  it  does  not  require 
the  strictness  of  statement  or  the  niceties  in  practice  that  are  im- 
posed and  expected  in  courts  where  those  practicing  are  learned 
in  the  law  and  skilled  in  the  technicalities  of  procedure.  In  courts- 
martial,  therefore,  the  law  is  satisfied  with  a  plain  statement  of  the 
charge  and  an  informal  introduction  of  evidence  in  such  manner  as 
to  bring  all  the  essential  facts  before  the  court.  As  in  all  other  courts 
the  law  is  equally  zealous  that  no  injustice  shall  be  done  to  the  ac- 
cused. 

§  3438.  Pleading — Certainty. — The  rule  of  pleading  with  refer- 
ence to  certainty  in  charges  before  courts-martial  is  not  essentially  dif- 
ferent from  that  in  other  courts,  except  that  the  same  degree  of  cer- 
tainty is  not  required.  Still  the  statement  must  be  certain  to  a  common 
intent,  that  is,  a  reasonable  amount  of  certainty  is  all  that  is  required. 
If  the  substance  of  the  charge  is  fully  and  accurately  stated  the  tech- 
nical verbiage,  so  profuse  in  criminal  indictments,  may  be  dispensed 
with.  On  this  subject  Col.  Winthrop  says :  "The  rule  as  to  certainty 
is,  as  a  general  principle,  applicable  to  the  military  charge  in  the 
same  manner  as  to  the  criminal  indictment  or  declaration  of  the  civil 
practice,  and  will   properly  be  observed   in   framing   specifications 

729 


§  3439.] 


PLEADINGS. 


7ao 


Because,  however,  of  the  exceptional  authority  possessed  by  courts- 
martial  in  their  findings,  of  correcting  errors  and  imperfections  of 
detail  in  specifications,  by  substituting  the  true  item  or  term  as  indi- 
cated by  the  testimony,  for  the  uncertain  or  incorrect  one  originally 
inserted,  a  military  pleading  will  more  readily  admit  of  an  uncer- 
tain statement  (in  an  allegation  for  example,  as  to  amount,  number, 
quantity  or  other  particular  of  description),  than  will  an  indict- 
ment."^ 


§  3439.  Pleading — Charge  and  specification. — Technically  the 
charge  consists  of  two  parts :  The  first  designates  the  offense  by 
name  under  the  particular  article  of  war;  the  second  the  facts 
by  way  of  specifications  sub«;tantially  sufficient  to  constitute  the 
alleged  offense.  It  is  the  office  of  the  specifications  to  state  the 
particular  act  done,  or  omitted,  or  the  precise  offense  committed  by 
the  accused,  stating  as  exactly  as  possible  the  time  and  place.  There 
may  be  more  than  one  specification,  and  each  specification  should 
set  forth  but  one  instance  of  the  offense.^  Where  the  specific  offense 
is  charged,  and  the  specification  is  not  sufficient  to  constitute  such 
offense,  the  pleading  is  insufficient.  But  when  the  charge  and  the 
specification  are  not  inconsistent,  they  may  be  taken  together,  and  if, 


*  1  Winthrop  Military  Law  &  Prec. 
191. 

*McClure  Dig.  Opinions,  §§  694, 
695;  1  Winthrop  Military  Law  & 
Prec.  209,  et  seq.;  United  States  v. 
Runkle,  122  U.  S.  543,  7  Sup.  Ct. 
1141;  Hamilton  v.  McClaughry,  136 
Fed.  445.  See  Military  Laws  U.  S. 
1901,  note  2,  pages  674,  675,  676, 
677,  678.  For  a  form  of  the  charge 
and  specification  and  the  find- 
ing of  the  court  the  following, 
taken  from  a  recent  case  in  a  fed- 
eral court,  is  given  as  a  model: 
Charge — Murder,  in  violation  of  the 
58th  Article  of  War.  Specification — 
In  that  Private  Fred  Hamilton, 
Troop  K,  6th  Cavalry,  U.  S.  Army, 
did  wilfully,  feloniously,  and  with 
malice  aforethought  inflict  a  wound 
on  Corporal  Charley  Cooper,  Troop 
K,  6th  Cavalry,  deceased,  by  firing 
a  ball   cartridge   from    a   Colt's   re- 


volver, calibre  38,  at  said  Cooper. 
From  the  effect  of  said  wound,  the 
said  Cooper  died  almost  immediate- 
ly, about  8 :  25  p.  ii..  on  the  23d  day 
of  December,  1900.  This  at  Camp 
Reilly,  Pekin,  China,  about  8:25  p. 
M.  on  the  23d  day  of  December, 
1900."  Findings.— Of  the  specifica- 
tions: Guilty.  Of  the  charge: 
Guilty.  Sentence. — And  the  court 
doth  therefore  sentence  him.  Pri- 
vate Fred  Hamilton,  Troop  K,  6th 
Cavalry,  to  be  dishonorably  dis- 
charged the  service  of  the  United 
States,  forfeiting  all  pay  and  al- 
lowances due  him,  and  to  be  con- 
fined at  hard  labor  in  such  peni- 
tentiary as  the  reviewing  authority 
may    direct   for    the    period    of    his 

natural  life.  Signed, . 

Hamilton  v.  McClaughry,  136  Fed. 
445;  Runkle  v.  United  States,  122 
U.  S.  543,  7  Sup.  Ct.  1141. 


731  STATEMENT    OF    CHARGE.  [§    '-'AiO. 

when  so  taken,  they  are  sufficient  to  state  an  offense,  the  pleading  will 
be  sufficient  as  a  basis  for  conviction  and  sentence.^  Each  specifica- 
tion should  be  entire  and  complete  in  itself  and  should  contain  all 
substantial  and  formal  matters  which  are  necessary  and  proper  both  to 
complete  itself  and  to  support  the  charge  as  laid.* 

§  3440.  Pleading — Statement  of  charge. — The  rule  as  to  the 
nature  and  office  of  the  charge  or  accusation  and  its  essential  re- 
quirements is  very  fully  and  aptly  stated  by  Mr.  Greenleaf  as  fol- 
lows: "The  accusation,  in  courts-martial,  which  stands  in  place  of 
the  indictment  in  courts  of  common  law,  is  composed  of  charges  and 
specifications.  The  office  of  the  charge  is  to  indicate  the  nature  of 
the  offense,  and  the  article  of  war  under  which  it  falls;  and,  there- 
fore, it  generally  is  either  couched  in  the  language  of  the  article 
itself,  or  is  stated  in  general  terms,  as  a  violation  of  such  an  article, 
mentioning  its  number.  The  former  mode  is  regarded  as  most  proper, 
and,  therefore,  is  usually  pursued ;  especially  where  the  article  in- 
cludes various  offenses,  or  is  capable  of  violations  by  various  and  dif- 
ferent actions.  The  latter  is  allowable  only  where  the  article  do- 
scribes  a  single  offense,  in  which  no  mistake  can  be  made.  The  speci- 
fication states  the  name  and  rank  of  the  prisoner,  the  company,  regi- 
ment, etc.,  to  which  he  belongs,  the  acts  which  he  committed,  and 
which  are  alleged  to  constitute  the  offense,  with  the  time  and  place 
of  the  transaction;  and  where  the  essence  of  the  offense  consists  in 
hurting  or  injuring  the  person  or  property  of  another,  the  name  and 
description  of  the  person  injured  should  be  stated,  if  known;  and  if 
not,  then  it  should  be  alleged  to  be  unknown.  If  the  prosecutor  is 
imable  precisely  to  state  the  time  and  place  of  the  offense,  he  may 
charge  that  the  fact  was  committed  at  or  near  such  a  place,  and  on 
or  about  such  a  time.  But  this  is  not  to  be  permitted,  if  it  can  pos- 
sibly be  avoided  without  the  sacrifice  of  justice,  as  it  tends  to  de- 
prive the  prisoner  of  some  advantage  in  making  his  defense.  In 
fine,  though  courts-martial,  as  has  just  been  observed,  are  not  bound 
to  all  the  technical  formalities  of  accusation  that  prevail  in  courts 
of  law,  yet  they  are  bound  to  observe  the  essential  principles  on 
which  all  charges  and  bills  of  complaint  ought  to  be  framed,  in  all 
tribunals,  whether  civil,  criminal  or  military;  namely,  that  they  be 
sufficiently  specific  in  the  allegations  of  time,  place,  and  facts,  to 

'  McClure  Dig.  Opinions,  §  699.  '  1      Winthrop     Military     Law     & 

Prec.  216. 


§§  3441,  3442.]  pleadings.  '  733 

enable  the  party  distinctly  to  know  what  he  is  to  answer,  and  to  be 
prepared  to  meet  it  in  proof  at  the  trial,  and  to  enable  the  court  to 
know  what  it  is  to  inquire  into  and  try,  and  what  sentence  it  ought 
to  render,  and  to  protect  the  prisoner  from  a  second  trial  for  the 
same  offense."^ 

§  3441.  Pleading — Time  and  place. — The  general  rule  is,  as  in  all 
pleadings,  that  the  specification  should  properly  charge  the  time  and 
place.  This  should  be  done  for  two  reasons:  (1)  That  it  may 
properly  appear  that  the  offense  was  committed  within  the  period 
required  by  the  articles  of  war;  (2)  in  order  that  the  accused  may 
understand  the  particular  act  or  omission  he  is  called  upon  to  de- 
fend. This  particularity  as  to  time  and  place  is  also  important  in 
ease  of  any  subsequent  trial  for  the  same  offense,  or  for  another 
offense  included  in  the  original  offense  and  thus  to  aid  a  plea  of  former 
acquittal  or  conviction.  But  where  the  exact  time  or  place  is  not 
known  it  is  sufficient  to  state  that  it  occurred  on  or  about  a  certain 
date  an.d  at  or  near  a  certain  place.  These  expressions  are  ordinarily 
used  in  military  pleadings  for  the  purpose  of  indicating  a  time  or 
place  as  nearly  as  can  be  ascertained,  at  or  during  which  the  offenses 
charged  were  supposed  to  have  been  committed." 

§  3442.  Answer.— The  answer  of  the  accused  is  similar  to  that 
in  criminal  pleading  and  practice.  If  there  are  special  matters  tbey 
should  be  pleaded.  Mr.  Greenleaf  states  the  rule  on  this  subject 
thus:  "The  prisoner's  answer  to  the  accusation  may  be  by  special 
plea  to  the  jurisdiction  of  the  court ;  as,  for  example,  that  it  has  been 
improperly  or  illegally  detailed;  or,  that  it  is  not  composed  of  the 
requisite  number  of  officers ;  or,  that  the  offense  is  purely  of  civil  and 
not  of  military  cognizance;  or,  that  he  is  not  of  a  class  of  persons 
amenable  to  its  jurisdiction.  Or,  he  may  answer  by  a  pl^a  in  bar; 
fiuch,  for  example,  as  that  the  period  of  time,  within  which  a  prose- 
cution for  the  offense  might  be  commenced,  has  already  elapsed ;  or, 
that  he  has  once  been  legally  tried  for  the  same  offense ;  or,  that  the 
proper  authority  had  officially  engaged  that,  on  his  becoming  a  wit- 
ness for  the  government  against  an  accomplice  for  the  same  offense 
he  should  not  be  prosecuted.     And  if  these  pleas  are  overruled,  he 

» 3  Greenleaf  Ev.,  §  472.  711 ;    1    Winthrop    Military    Law    & 

•McClure   Dig.    Opinions,    §§    710,     Prec.  196,  et  seq. 


733  ANSWER.  [§  3443. 

still  may  put  the  allegations  in  issue  by  the  general  plea  of  not 
guilty;  in  the  same  manner  as  in  criminal  courts,  on  the  trial  of  an 
indictment."^  When  a  prisoner,  arraigned  before  a  general  court-mar- 
tial, from  obstinaricy  and  deliberate  design,  stands  mute,  or  .-mswers 
foreign  to  the  purpose,  the  court  may  proceed  to  trial  and  judgment 
the  same  as  if  he  had  pleaded  not  guilty.^ 

'3   Greenleaf   Ev.,    §   473;    Maltby     &    Prec.    374,     379;     McClure    Dig. 
Courts-Martial    53-60;    2    McArthur     Opinions,  §  1995. 
26,   27;    1   Winthrop   Military   Law        "Article  89. 


CHAPTER  CLXXIII. 


TBIAL  AND  FINDINGS. 


Sec.  Sec. 

3443.  Sessions.  3452.  Decision  and  penalty. 

3444.  Continuance.  3453.  Findings — Follow  evidence. 

3445.  Evidence  heard  in  open  court.     3454.  Finding— On  charge  and  spec- 

3446.  Opening  statement.  ifications. 

3447.  Swearing  witnesses.  3455.  Finding— Exceptions  and  sub- 

3448.  Separation  of  witnesses.  stitutions. 

3449.  Order  of  introduction   of  tes-     3456.  Finding— Approval. 

timony.  3457.  Finding — Approval      by      the 

3450.  Hearing — Record    of    evidence  president. 

and  objections.  3458.  Findings— Disapproval. 

3451.  Questions     by     members  of 

court. 

§  3443.  Sessions. — Following  the  English  custom  the  statute 
formerly  provided  that  all  sessions  of  the  courts-martial  should  be 
held  between  the  hours  of  eight  o'clock  in  the  morning  and  three 
o'clock  in  the  afternoon,  except  in  particular  cases.  But  this  sec- 
tion has  been  repealed  by  the  Act  of  1901,  and  the  court  is  not 
governed  by  any  statutory  regulation  as  to  the  hours  of  its  session. 
But  it  is  obvious  that  the  sessions  should  be  so  arranged  that  the 
judge-advocate  may  have  an  opportunity  to  prepare  the  daily  record. 
It  is  evident  that  the  law-makers  intended  that  the  sessions  of  the 
court-martial  should  now  be  determined  entirely  by  the  court  itself: 

§  3444,  Continuance. — "A  court-martial  shall,  for  reasonable 
cause,  grant  a  continuance  to  either  party,  for  such  time,  and  as  often, 
as  may  appear  to  be  just:  Provided,  that  if  the  prisoner  be  in  close 
confinement  the  trial  shall  not  be  delayed  for  a  period  longer  than 
sixty  days."^  The  rules  in  regard  to  the  continuance  are  very  similar 
to  those  in  general  practice  in  other  courts.  The  court  should  re- 
quire a  showing  that  the  absent  evidence  is  material  and  not  cumula- 

^  Article  93. 

734 


735    CONTINUANCE — EVIDENCE  IN  OPEN  COUHT.   |  §§  3445,  3446. 

tive.  It  should  be  satisfied  also  that  the  absence  of  tlie  witness  was  not 
owing  to  the  neglect  or  the  procurement  of  the  party.  The  accused 
ought  not  to  be  charged  with  negligence  in  this  respect  where  the 
witness  is  prevented  from  being  present  by  superior  military  author- 
ity.^ So  where  there  is  a  material  difference  between  the  copy  of  the 
charge  served  upon  the  accused  and  the  charge  and  specification  upon 
which  he  is  to  be  tried,  or  where  a  material  and  substantial  amendment 
is  made  in  the  specification,  either  of  these  may  be  sufficient  grounds 
for  a  continuance.^  So  it  is  proper  to  continue  the  hearing  in  order 
to  give  the  accused  time  to  procure  counsel.  But  a  refusal  to  grant 
a  continuance  will  not  necessarily  invalidate  the  proceedings;  how- 
ever, if  the  accused  has  been  prejudiced  in  any  manner  it  may  con- 
stitute good  grounds  for  disapproving  the  sentence  or  for  mitigating 
or  partially  remitting  the  punishment.* 

§  3445.  Evidence  heard  in  open  court. — On  the  question  of  the 
production  and  introduction  of  the  evidence  in  open  court  Col.  Win- 
throp  states  the  rule  as  follows:  "All  testimony,  whether  oral  or 
written,  and  whether  upon  the  main  or  an  interlocutory  issue,  is 
to  be  introduced  in  open  court,  and  no  testimony  can  be  received  by 
the  court  during  a  period  of  deliberation  after  it  has  been  cleared. 
So,  where  a  member  of  the  court  has  knowledge  of  material  facts  in 
the  case,  he  cannot  properly  communicate  the  same  privately  to  the 
court  when  cleared  for  deliberation,  or  to  the  other  members  but 
should  cause  himself  to  be  sworn  as  a  witness  on  the  part  of  the 
prosecution  or  defense.  To  the  rule  that  the  testimony  shall  be  taken 
in  open  court,  an  exception  has  been  recognized  in  a  case  where  a 
material  witness,  commorant  at  the  station  at  whieli  the  court  is  as- 
sembled, is  unable,  through  sickness  or  other  disability,  to  attend, 
and  the  exigencies  or  interests  of  the  service  do  not  justify  waiting 
for  his  recovery.  In  such  a  case  the  court  may  temporarily  adjourn 
to  the  quarters  or  hospital  where  the  witness  may  be,  and  receive  the 
testimony,  taken  in  the  usual  manner."® 

§'3446.  Opening  statement. — The  order  of  the  trial  is  very  similar 
to  that  in  criminal  procedure.  From  the  nature  of  the  proceedings 
of  a  court-martial  it  is  not  regarded  as  of  mucli  importance  to  have 

=  McClure  Dig.  of  Opinions,  §  275,  *  McClnre  Dig.   Opinions,   §  276. 

note  5,  §  277.  ^  Winthrop  Military  Law  &  Prec. 

'McClure    Dig.    Opinions,    g§  278,  430. 
289. 


§§  3447,  3448.]  trial  and  findings.  73(5 

an  open  statement  either  for  the  government  or  for  the  accused.  It 
has  been  said  that  in  complicated  cases  or  where  there  are  numerous 
charges  and  specifications  that  there  may  be  some  advantage  both 
to  the  parties  and  the  court  for  the  judge-advocate  to  make  a  brief 
statement  of  the  testimony  intended  to  be  offered  to  establish  the 
charges  and  specifications  and  to  state  to  the  court  the  principles  of 
law  applicable  to  the  case.  These  sometimes  simplify  and  facilitate 
the  trial  and  aid  in  the  exclusion  of  collateral  and  irrelevant  matters. 
The  same  applies  to  the  statement  of  the  defense  where  the  witnesses 
are  numerous  or  the  points  of  law  complicated.  But  in  both  in- 
stances argument  should  be  avoided. 

§  3447.  Swearing  witnesses. — Before  proceeding  to  hear  any  evi- 
dence the  witnesses  will  all  be  called  into  the  presence  of  the  court 
and  there  have  administered  to  them  the  oath  or  affirmation.  While 
taking  this  oath  the  witnesses  should  stand  with  their  right  hands 
uplifted.  The  form  of  this  oath  or  affirmation  is :  "You  swear 
(or  affirm)  that  the  evidence  you  shall  give,  in  the  cause  now  in 
hearing,  shall  be  the  truth,  the  whole  truth,  and  nothing  but  the 
truth.  So  help  you  God."®  The  judge-advocate  is  authorized  to 
administer  the  oath.'^  And  the  judge-advocate  may,  where  he  is  a 
witness,  be  sworn  by  the  president  of  the  court.^ 

§  3448.  Separation  of  witnesses. — As  in  civil  or  criminal  cases 
the  witnesses  may  be  separated  and  all  excluded  from  the  room  or 
the  immediate  presence  of  the  court  except  the  one  called  to  testify. 
Before  the  taking  of  evidence  is  commenced  the  judge-advocate  may 
direct  all  the  witnesses  to  remain  out  of  the  room  or  out  of  hearing 
of  the  court.  The  purpose  of  this  is  to  avoid  any  collusion  or  any 
infl.uence  that  the  testimony  of  one  witness  might  have  upon  another 
who  should  hear  the  first  and  to  arrive  at  the  exact  truth.  This 
rule  of  exclusion  should  apply  to  witnesses  for  both  sides.  How- 
ever, the  rule  is  seldom  applied  to  expert  witnesses  as  it  is  not  sup- 
posed that  their  testimony  would  be  influenced  by  that  of  any  other 
witness.* 

'■  Article  92.  '  Winthrop     Military      Law      and 

'  Act  July  27,  1892,  §  4.  Prec.  125. 

*  McClure  of   Digest  of  Opinions, 
S  274. 


737  ORDER  OF  PROOF.  [§§  3449,  3450. 

§  3449.  Order  of  introduction  of  testimony. — After  the  court  is 
convened  and  the  witnesses  presented  and  sworn,  the  judge-advocate 
calls  the  first  witness  for  the  government  and  proceeds  to  examine 
him.  This  examination  is  made  by  propounding  a  series  of  questions 
to  the  witness  and  requiring  him  to  answer  each  consecutivelv  until 
he  has  thus  given  all  that  lie  knows  as  to  the  matter  in  controversy 
or  touching  the  question  of  the  accused.  After  the  examination-in- 
chief  of  each  witness,  the  accused,  by  his  counsel,  is  permitted  to 
cross-examine  with  a  view  of  testing  the  knowledge  and  truthfulness 
of  the  witness  as  well  as  to  show  any  bias  or  prejudice  that  he  may 
have,  and  with  a  further  view  of  extracting  any  evidence  favorable  to 
him.  When  the  judge-advocate  has  examined  all  the  witnesses  on 
the  part  of  the  government  he  again  announces  that  the  prosecution 
rests.  The  accused  then  introduces  his  witnesses  and  examines  each, 
subject  to  cross-examination  by  the  judge-advocate.  On  the  con- 
clusion of  his  evidence  the  government  may  then  call  any  witnesses 
in  rebuttal  and  the  accused  may  again  call  witnesses  to  rebut  any 
new  matter  developed  on  the  rebuttal  by  the  prosecution.^"  The 
court  will  not  limit  the  parties  absolutely  to  this  order  l)ut  may  hear 
witnesses  entirely  out  of  order  and  new  matter  may  be  introduced  at 
any  time  before  the  conclusion  of  the  evidence,  or  the  argument. 
The  admission  of  any  new  evidence  is  subject  to  the  right  of  the  other 
party  to  cross-examine  and  rebut. ^^ 

§  3450.  Hearing — ^Record  of  evidence  and  objections. — The  gen- 
eral rules  as  to  the  method  of  taking  evidence,  reducing  the  same  to 
writing,  stating  and  considering  objections  as  well  as  tlie  rule  per- 
mitting witnesses  to  correct  their  evidence,  is  thus  stated  by  Mr. 
Greenleaf:  "All  evidence  orally  given  in  courts-martial,  is  taken 
down  in  writing  by  the  judge-advocate,  and  recorded  in  the  proceed- 
ings, in  the  words  of  the  witness,  as  nearly  as  may  be,  and  in  the  order 
in  which  it  is  received  by  the  court.  A  question,  being  reduced  to 
writing  by  the  person  propounding  it,  whether  it  be  the  prosecutor, 
the  prisoner,  or  a  member  of  the  court,  is  handed  to  the  president, 
and,  if  approved  by  him,  it  is  read  aloud  and  entered  by  the  judge- 
advocate  on  the  record  of  the  proceedings;  after  which,  if  no  objec- 
tion to  it  is  sustained,  it  is  addressed  to  the  witness.  If  it  is  ob- 
jected to  by  a  single  member  only,  of  the  court,  the  party  propound- 

'•1  Winthrop  Military  Law  &  "1  Winthrop  Military  Law  & 
Prec.  427,  510.  Prec.  429  and  notes. 

Vol.  4  Elliott  Ev. — 47 


g§  3451,  3452.]  trial  and  findings.  738 

ing  it  is  entitled  to  the  collective  opinion  of  the  whole  court  as  to 
its  admissibility.  And  if  the  question  is  rejected  by  the  court,  the 
question  and  its  rejection  are  still  entered  of  record  with  the  pro- 
ceedings. If  a  witness  wishes  at  any  time  before  the  close  of  all  the 
testimony  to  correct  or  retrace  any  part  of  his  evidence  in  which  he 
has  been  mistaken,  he  will  be  allowed  to  do  so;  but  this  must  be 
done  by  an  addition  to  what  he  has  before  stated;  and  not  by  way  of 
erasure  or  obliteration ;  it  being  important,  in  all  cases,  that  the  supe- 
rior authority,  which  reviews  the  evidence,  should  have  an  accurate, 
and,  as  it  were,  a  dramatic  view  of  all  that  transpired  at  the  trial."^- 

§  3451.  Questions  by  members  of  court. — ^The  members  of  a 
court-martial  sit  as  the  judges  and  they  have  the  same  right  to  ask 
questions  as  judges  in  civil  and  criminal  cases.  While  it  is  not 
tlieir  duty  to  conduct  the  examination  yet  it  is  their  right  and  privi- 
lege to  ask  questions  for  the  purpose  of  satisfying  their  own  minds 
on  any  matter  which  is  not  clear  to  them.  Or  any  member  desiring 
further  information  may  suggest  a  question  to  the  judge-advocate 
or  to  the  counsel  for  the  accused.  And  the  court  as  such,  for  the  pur- 
pose of  a  more  thorough  investigation,  may  call  upon  the  judge-ad- 
vocate to  procure,  if  practicable,  certain  material  evidence  that  has 
not  been  introduced  and  may  give  ample  time  by  adjournment  for 
the  production  of  such  evidence.  ^^ 

§  3452.  Decision  and  penalty. — On  the  conclusion  of  the  evi- 
dence and  the  argument  the  court  shall  proceed  to  determine  by  vote 
as  to  the  guilt  or  innocence  of  the  accused.  This  determination  shall 
be  by  a  vote  of  the  members  of  the  court  and  in  giving  their  votes  it 
is  expressly  declared  that  court  shall  begin  with  tlie  youngest  in  com- 
mission.^* It  is  also  provided  that  no  person  shall  be  sentenced 
to  suifer  death,  except  by  the  concurrence  of  two-thirds  of  the  mem- 
bers of  the  eourt.^^  When  the  vote  is  a  tie  on  any  charge  or  specifi- 
cation it  is  equivalent  to  a  finding  of  not  guilty,  a  majority  being 
necessary  to  conviction.  But  in  such  cases  the  record  should  not 
state  that  in  consequence  of  such  tie  vote  the  accused  was  therefore 
acquitted.  The  only  showing  that  can  be  made  by  the  records  in  such 
ease  is  that  the  vote  on  the  charge  or  specifications  was  a  tie." 

'2  3  Greenleaf  on  Evidence,  §  492.  "Article  96. 

"1    Winthrop    Military    Law    &  "  McClure      Dig.      of      Opinions, 

Free.  429,  430.  §  1364. 
"Article  95. 


739  FINDINGS    SHOULD    FOLLOW    EVIDENCE.       [§§    3453,    3454. 

Neither  can  the  court  assess  the  punishment  of  confinement  in  the 
penitentiary  unless  the  offense  of  which  the  accused  may  be  con- 
victed would  by  some  statute  of  the  United  States,  or  by  some  statute 
of  the  state,  territory  or  district  in  which  the  alleged  offense  was 
committed,  subject  the  accused  to  similar  punishment. ^^  It  is  evi- 
dent from  these  articles  that  punishment  by  confinement  in  a  peniten- 
tiary cannot  be  assessed  where  the  offense  is  a  breach  of  military 
discipline  or  of  a  purely  or  exclusively  military  character." 

§  3453.  Finding^s — Follow  evidence. — The  finding  of  the  court- 
martial  should  be  in  accordance  with  the  evidence.  Otherwise  it  is 
subject  to  disapproval.  A  court-martial  has  neither  the  right  nor 
power  to  disregard  the  evidence  introduced  at  the  hearing;  its  find- 
ing and  sentence  must  stand  on  this.  However,  it  is  within  the  prov- 
ince of  the  court  to  pass  upon  the  weight  of  the  evidence  and  the 
credibility  of  the  witnesses.  Where  the  evidence  is  conflicting  the 
members  of  the  court  must  determine  the  measure  of  credibility 
which  they  will  attach  to  each  of  the  several  witnesses.  In  determin- 
ing this  it  is  proper  for  the  court  to  take  into  consideration,  in  con- 
nection with  the  testimony,  the  appearance  and  conduct  of  the  wit- 
nesses while  testifying,  also  their  manner,  and  apparent  candor  or 
prejudice,  as  well  as  the  reasonableness  and  consistency  of  their 
story.^^  The  findings  on  the  charge  and  the  specification  or  specifi- 
cations should  be  consistent.  But  where  there  is  more  than  one 
specification,  if  the  finding  on  any  one  of  them  that  is  consistent  with 
finding  on  the  charge,  it  is  sufficient.-'' 

§  3454.  Finding — On  charge  and  specifications. — As  shown  in  a 
previous  section  the  accusation  consists  of  the  cliarge  and  the  specifi- 
cation or  specifications  which  are  entirely  separate.  So  the  finding 
of  the  court  should  be  expressly  and  separately  upon  such  charge  and 
upon  the  specification;  the  finding  should  state,  (1)  that  the  accused 
is  found  guilty  or  not  guilty  upon  the  charge,  (2)  that  the  accused  is 
found  guilty  or  not  guilty  upon  the  specification.  Or  in  case  of  more 
than  one  specification  it  may  state  tliat  the  accused  is  found  guilty 
on  each,  or  that  he  is  found  guilty  of  one  specification,  giving  the 
number,  and  not  guilty  upon  another  or  others,  giving  the  number  or 

"  Article  97.  ''  McClure      Dig.       of      Opinions, 

"McClure  Dig.  of  Opinions,  §  288,     §§  1352,  1365. 
et  seq.  ""  McClure       Dig.       of      Opinions, 

§§  1353, 1367. 


§§  3455,  3456.]  trial  and  fixdixgs.  740 

numbers.-^  Where  no  evidence  is  introduced  the  rule  is  that  the  find- 
ing should  conform  to  the  plea.  In  case  an  accused  should  plead 
guilty  to  the  specification  but  not  guilty  to  the  charge,  it  then  be- 
comes a  question  of  law  for  the  court  to  determine  whether  or  not  the 
facts  alleged  in  the  specification  sustain  the  charge  as  a  matter  of 
law,  and  if  the  court  determines  that  they  do  then  it  may  find  accused 
guilty  on  such  plea  of  both  charge  and  specification.-- 

§  3455.  Finding — Exceptions  and  substitutions. — Wliere  the  court 
finds  the  accused  guilty  of  the  charge,  it  also  has  the  power,  when 
the  evidence  warrants,  to  find  him  guilty  of  a  part  of  the  specifica- 
tion only  and  excepting  the  remainder.  So  it  has  been  held  that  in 
finding  him  guilty  of  the  whole,  or  a  part,  the  court  may  substitute 
correct  words  or  allegations  in  place  of  such  as  are  shown  by  the  evi- 
dence to  have  been  inserted  through  error.  When  such  exceptions 
or  substitutions  make  the  specification  appropriate  to  the  charge  and 
legally  sufficient,  the  accused  may  then  be  found  guilty  of  the  charge 
in  the  usual  manner.^^  Instances  of  the  power  of  the  court  to  ex- 
cept and  substitute  occur  where  the  name  or  rank  of  the  accused  or 
other  person  is  erroneously  stated,  or  the  averment  of  time,  place, 
date,  amount,  quantity  or  quality  is  erroneous.^*  Another  instance 
of  this  power  of  the  court  to  change  or  substitute  is  that  where  the 
offense  stated  in  the  charge  includes  a  lesser  kindred  ofEense.  Thus 
under  a  charge  of  desertion  the  court  may  find  the  accused  guilty  of 
absence  without  leave  and  so  change  the  specification.  Under  such 
a  charge  where  the  evidence  fails  to  establish  a  desertion  but  does 
show  an  unauthorized  absence,  the  accused  should  be  convicted  of 
this  as  his  actual  offense  and  the  court  may  except  such  words  of  the 
specification  as  describe  the  desertion  and  substitute  words  describing 
the  lesser  offense  of  absence  without  leave. '^  But  this  rule  will  not 
justify  the  conviction  of  an  accused  of  an  offense  entirely  separate 
and  distinct  in  its  nature  from  the  one  charged.-'' 

3456.  Finding — Approval. — "No  sentence  of  a  court-martial  shall 
be  carried  into  execution  until  the  same  shall  have  been  approved  by 

-'McClure  Dig.  of  Opinions,  =*  McClure  Dig.  of  Opinions, 
§  1354.  §  1357. 

-McCIure  Dig.  of  Opinions,  =^  McClure  Dig.  of  Opinions, 
§§  1352,  1353.  §  1359. 

=^  McClure  Dig.  of  Opinions,  ="  McCIure  Dig.  of  Opinions, 
§  1355.  §  1360,  et  seq. 


1  il  riXDiXG.  [§  3456. 

the  officer  ordering  the  court,  or  by  the  officer  commanding  for  the 
time  being."-^     "The  officer  commanding  for  the  time  being  is  held 
to  be  an  officer  who  has  succeeded  to  the  command  of  the  officer  who 
convened  the  court;  or  where  the  command  of  the  convening  officer 
has  been  discontinued  and  merged  in  a  larger  or  other  command  at 
some  period  of  time  after  the  convening  of  the  court  and  before  the 
findings  are  to  be  approved."-^     But  it  is  held  that  a  department 
commander  cannot  deputize  a  staff  or  other  officer  to  act  for  him  in 
this  respect  while  temporarily  absent  from  his  headquarters.^®     And 
it  is  the  statutory  provision  that  in  time  of  war  "no  sentence  of  a 
court-martial  appointed  by  the  commander  of  a  division  or  of  a  sep- 
arate brigade  of  troops,  directing  the  dismissal  of  an  officer,  shall 
be  carried  into  execution  until  it  shall  have  been  confirmed  by  the 
general  commanding  the  army  in  the  field  to  which  the  division  or 
brigade  belongs."^"     But  under  more  recent  statutes  it  seems  unnec- 
essary for  the  reviewing  officer  to  approve  more  than  the  sentence; 
and  under  this  statute  it  would  doubtless  be  sufficient  to  state  in 
general  terms  that  the  sentence  is  approved. ^^     The  commanding  offi- 
cer authorized  to  approve  the  sentences  of  summary  court  and  supe- 
rior authority  now  has  power  to  remit  or  mitigate  such  sentences.^^ 
And  the  statute  also  provides  that  "all  sentences  of  a  court-martial 
may  be  confirmed  and  carried  into  execution  by  the  officer  ordering 
the  court,  or  by  the  officer  commanding  for  the  time  being,  where 
confirmation  by  the  President,  or  by  the  commanding  general  in  the 
field,  or  commander  of  the  department,  is  not  required  by  these  arti- 
cles."^^    The  approval  of  the  finding  or  sentence  as  required  by  these 
articles  should  be  of  a  formal  character.     But  it  has  been  held  that 
the  writing  of  a  single  word  "approved"  when  signed  by  the  com- 
mander, though  strictly  sufficient  in  law,  is  irregular  and  objectiona- 
ble.    So  a  mere  recommendation  that  the  proceedings  be  approved  is 
insufficient.     These  articles  of  war  require  that  the  sentence  of  the 
court-martial  be  approved,  and  it  has  been  held  that  it  is  not  suffi- 

="  Article  104;  Dig.  Opin.  J.  A.  G.,  the  disniissal  of  an  oflScer  must  be 

Par.  2227.  confirmed   by   the   President  before 

^  McClure      Dig.      of      Opinions,  becoming  effective.     A.  W.  106. 

§§326,327,333.  ^'McClure       Dig.      of      Opinions. 

'^McClure      Dig.      of      Opinions,  §  2228;    Act  July  27,  1892.     See  U. 

§§  325,  2234.  S.  Comp.  Stat.  968,  art.  104. 

•>»  Article  107.     In  time  of  peace  a  -'=1  U.  S.  Comp.  Stat.,  p.  962,  §  3. 

sentence   of   court-martial   directing  ''"  Article  109. 


§    3457.]  TRIAL    AXD    FINDINGS.  742 

cient  to  approve  the  findings  only.-''''  It  seems  that  the  following 
properly  signed  by  the  officer  is  sufficient :  "The  proceedings,  findings, 
and  sentence  are  approved."^^ 

3457.  Finding — Approval  by  the  President. — The  article  of  war 
provides  that :  "jSTo  sentence  of  a  court-martial,  inflicting  the  pun- 
ishment of  death,  shall  be  carried  into  execution  until  it  shall  have 
been  confirmed  by  the  President;  except  in  the  cases  of  persons  con- 
victed, in  time  of  war,  as  spies,  mutineers,  deserters,  or  murderers, 
and  in  the  cases  of  guerilla  marauders,  convicted,  in  time  of  war,  of 
robbery,  burglary,  arson,  rape,  assault  with  intent  to  commit  rape, 
or  of  violation  of  the  laws  and  customs  of  war;  and  in  such  excepted 
cases  the  sentence  of  death  may  be  carried  into  execution  upon  the 
confirmation  by  the  commanding  general  in  the  field,  or  the  com- 
mander of  the  department,  as  the  case  may  be."^®  There  are  certain 
other  classes  of  cases  where  the  sentence  must  be  approved  by  the 
President,  thus :  "In  time  of  peace  no  sentence  of  a  court-martial 
directing  the  dismissal  of  an  officer  shall  be  carried  into  execution 
until  it  shall  have  been  confirmed  by  the  President."^^  It  is  also  pro- 
vided that  "no  sentence  of  a  court-martial,  either  in  time  of  peace,  or 
in  time  of  war,  respecting  a  general  officer,  shall  be  carried  into  exe- 
cution until  it  shall  have  been  confirmed  by  the  President."^^  The 
statute  provides  no  form  by  which  the  President  shall  declare  his 
confirmation  of  the  sentence.  Nor  does  it  require  that  such  a  con- 
firmation shall  be  signed  by  the  President.  It  has  accordingly  been 
held  that  under  the  well  established  principle  that  the  personal  sig- 
nature of  the  President  is  not  made  essential  by  law  to  give  effect  to 
executive  proceeding;  but  that  the  signature  of  the  head  of  the  de- 
partment to  which  the  subject  belongs  is  sufficient,  his  act  being 
deemed  in  law  the  act  of  the  President.^"  But  it  has  been  held  that 
the  approval  of  the  President  must  bo  so  authenticated  that  it  will 
show,  otherwise  than  argumentatively,  that  such  confirmation  is  the 
result  of  the  judgment  of  the  President,  and  that  it  is  not  a  mere 
departmental  order  to  which  his  attention  may  or  may  not  have  been 

^McClure  Dig.  of  Opinions,  §  324.  -"Article  108. 

'^Hamilton    v.    McClaughry,    136  =' McClure  Dig,  of  Opinions.  §  337; 

Fed.  455.  15    Opinions   Attorney-General    290; 

^'McClure  Dig.  of  Opinions,  §  98;  United    States   v.    Page,    137    U.    S. 

Article  105.  673,  11  Sup.  Ct.  219. 

==' Article  106. 


743  DISAPPROVAL.  [§  3458. 

called ;  in  other  words,  the  fact  that  the  confirmation  is  the  act  of  the 
President  must  not  be  left  to  inference  only.*^ 

§  3458.  Findings — Disapproval. — Disapproval  of  the  findings  and 
sentence  wholly  nullifies  them.  This  disapproval  of  the  sentence  is 
not  a  mere  expression  of  disapprobation,  but  it  has  been  held  to  be  a 
final  determinate  act;  it  puts  an  end  to  the  proceedings,  and  renders 
the  sentence  nugatory  and  inoperative.  If  the  intervening  reviewing 
officer  disapproves  the  sentence  it  is  not  required  to  be  then  for- 
warded to  the  final  or  ultimate  reviewing  officer  or  person.^^ 

But  the  disapproval  must  be  express ;  the  mere  absence  of  approval 
is  held  not  to  amount  to  a  disapproval.  The  disapproval  is  held  to  be 
tantamount  to  an  acquittal  by  the  court.*^  A  reviewing  officer  cannot 
disapprove  the  sentence  or  the  proceedings  and  then  in  any  manner 
change  or  mitigate  the  punishment.*^  Wliere  the  proceedings  are 
erroneous  or  ill  advised,  or  the  sentence  inadequate,  he  may  reas- 
semble the  court  and  give  his  reasons  for  so  doing ;  but  he  has  no  power 
to  add  to  the  penalty  or  increase  the  sentence  in  any  manner.** 

«Runkle  v.  United  States,  122  U.         "  McClure  Dig.  Opinions,  §  2229. 
S.    543,    7    Sup.    Ct.    1141;     United         *=  13  Opinions  Att'y-Gen.  460;   Mc- 

States  v.   Page,   137   U.   S.   673,   11  Clure  Dig.  of  Opinions,  §  2229. 
Sup.     Ct.     219;     United     States    v.         « McClure      Dig.      of      Opinions, 

Fletcher,  148  U.  S.   84,  13   Sup.  Ct.  §  2229. 

84;  Schley's  Case,  14  Green  Bag  99,         "  McClure      Dig.      of      Opinions, 

147.     But    see    Bishop    v.     United  §  2231. 
States.  197  U.  S.  334,  25  Sup.  Ct.  440. 


CHAPTER   CLXXIV. 

EVIDENCE    GENERAL    BULGES. 

Sec.  Sec. 

3459.  Generally.  3468.  Proof  of  enlistment. 

3460.  Rules  of  evidence.  3469.  Documents — Telegrams. 

3461.  Rules     of     evidence  —  Green-  3470.  Degree    of    proof— Reasonable 

leaf's  rule.  doubt. 

3462.  Agency    and    identity    of    ac-     3471.  Rank  of  officer— Effect  on  evi- 

cused.  dence. 

3463.  Proof  of  corpus  delicti.  3472.  Opinion  evidence. 

3464.  Intent— Proof.  3473.  Burden  of  proof. 

3465.  Relevancy  of  evidence.  3474.  Burden  of  proof  never  shifts. 

3466.  Documentary  evidence.  3475.  Character — Proof  as  to. 

3467.  Documents — Record    of  previ-     3476.  Impeachment  of  witness. 

ous  trial.  3477.  Depositions. 

§  3459.  Generally. — It  is  not  within  the  scope  of  this  work,  un- 
der this  particular  heading,  to  give  in  detail  all  the  rules  of  evi- 
dence applicable  to  trials  by  court-martial.  In  the  nature  of  the  ease 
this  would  involve  a  repetition  of  a  vast  amount  of  material  found  in 
the  preceding  volumes  of  this  work.  This  would  necessarily  involve 
the  discussion  anew  of  all  such  subjects  as  the  relevancy  of  the  evi- 
dence, its  materiality  and  competency,  the  competency  of  witnesses 
and  parties,  presumptions  and  burden  of  proof,  judicial  notice,  hear- 
say, res  gestae  admissions,  documentary  evidence  and  all  other  prin- 
ciples which  form  the  basis  of  the  admissibility  of  evidence  in  the 
trial  of  civil  and  criminal  cases.  It  is  the  purpose  herein  to  consider 
the  rules  that  are  particularly  applicable  and  incident  to  court- 
martial  proceedings,  leaving  to  the  student  and  the  practitioner  alike 
the  general  rules  and  principles  stated  and  illustrated  throughout  the 
body  of  this  work.  If  any  of  these  principles  are  repeated  here  it  is 
for  the  purpose  of  showing  their  special  application  in  the  practice 
in  these  tribunals. 

§  3460.  Rules  of  evidence. — The  rules  of  evidence  in  court- 
martial  proceedings  are  not  essentially  diiferent  from  those  which 

744 


745  RULES  OF  EVIDENCE.        [§§  3461,  3462, 

obtain  in  tho  criminal  courts  generally  throughout  tlic  United  States 
and  in  England.  Wherever  there  are  any  statutory  regulations  or 
provisions  on  the  subject  of  courts-martial,  or  the  evidence  admissible 
on  the  trials  in  such  courts,  these  must  control.  But  in  the  absence 
of  such  statutory  regulations  the  common  law  rules  of  evidence  apply 
although  not,  perhaps,  in  all  their  strictness.  The  rule  governing  in 
such  cases  is  that  when  a  legislature  creates  a  new  court  or  a  new  judi- 
cature and  fails  to  prescribe  the  rules  of  practice  as  to  the  admissibility 
of  evidence,  such  courts  will  not  be  permitted  to  lapse  by  reason  of  such 
failure,  but  the  common  law  will  supply  the  rules  sufficient  and  neces- 
sary for  the  practice  in  courts  thus  created.  Hence,  where  there  is  any 
failure  to  prescribe  the  rules  of  evidence  for  trials  in  courts-martial, 
the  rules  of  evidence  then  that  prevail  in  the  criminal  courts  of  the 
country  will  be  used  as  guides  for  the  practice  in  these  courts.^ 

§  3461.  Rules  of  evidence — Greenleaf  s  rule. — The  principle  of 
the  preceding  section  is  recognized  by  both  courts  and  law  writers. 
So  far  as  any  rules  of  evidence  have  ever  been  applied  in  courts- 
martial  as  a  matter  of  practice  the  rules  of  the  common  law  have 
been  followed  in  so  far  as  they  have  been  applicable,  and  criminal 
procedure  in  its  simplest  form  has  always  been  regarded  as  the  stand- 
ard in  these  courts.  Mr.  Greenleaf  states  the  rule  both  as  to  martial 
and  military  law  thus:  "The  tribunals  of  both  are  alike  bound  by 
the  common  law  of  the  land  in  regard  to  the  rules  of  evidence,  as  well 
as  other  rules  of  law,  so  far  as  they  are  applicable  to  the  manner  of 
proceeding;  but  courts-martial,  when  administering  the  military  law, 
having  cognizance  only  of  criminal  offenses,  are  bound  by  the  rules 
of  evidence  administered  in  criminal  cases  in  the  courts  of  common 
law;  and  therefore  ought  not  to  convict  the  prisoner  until  all  rea- 
sonable doubt  of  his  guilt  is  removed;  allowing  the  presumption  of 
innocence,  in  all  cases,  to  operate  in  his  favor ;  whereas,  when  taking 
cognizance,  under  martial  law,  of  matters  of  merely  civil  conduct, 
such  as  the  non-payment  of  debts,  or  the  like,  they  are  at  liberty  to 
decide  according  to  the  preponderance  of  testimony  on  either  side."^ 


§  3462.     Agency  and  identity  of  accused.— In  making  the  chain 
of  evidence  which   must  bind   and   convict  tlie   accused    it   must  be 

^Simmon    Courts-Martial    330;      88;    Ayde  Courts-Martial   174;    Mac- 
Benet  Military  Law  and  Courts-Mar-     Arthur  Courts-Martial  107,  112. 
tial  224;  Grant  v.  Gould,  2  H.  Bl.  69,         -3  Greenleaf  Ev.,  §  469. 


§§  3463,  3464.]  evidence   in   general.  746 

shown  that  he  was  the  agent,  in  the  commission  of  the  ofPense;  he 
must  be  identified  as  the  person  who  committed  the  act.  This  is  not 
regarded  as  diflBcult  to  establish  where  the  accused  is  well  known  and 
the  offense  was  committed  in  daylight.  But  where  the  accused  is  a 
stranger,  or  the  offense  was  committed  in  tlie  night-time,  much 
difificulty  in  establishing  the  agency  and  the  identity  of  the  accused 
is  sometimes  experienced;  but  the  law  makes  no  allowance  for  these, 
or  like  difficulties,  and  satisfactory  proof  must  be  made  of  these  dis- 
tinct facts  in  order  to  justify  a  conviction. 

§  3463.  Proof  of  corpus  delicti. — The  proof  before  a  court-martial, 
as  in  other  courts,  mu?;t  establish  three  propositions:  (1)  That  the 
act  stated  in  the  charge  and  those,  or  some  of  them,  as  stated  in  the 
specifications  which  constitute  the  alleged  offense,  were  actually  com- 
mitted; (2)  that  the  accused  is  the  identical  person  who  alone,  or 
with  others,  committed  the  ofl'ense;  (3)  that  the  accused  committed 
the  offense  with  the  intent  and  purpose  which  bring  it  within  the 
terms  of  the  charge  and  the  specification.  It  is  a  fundamental  prin- 
ciple in  all  criminal  proceedings  that  the  body  of  the  crime,  the  fact 
that  the  alleged  offense  was  actually  committed,  must  be  established 
by  the  proof.  There  can  be  no  such  thing  as  a  conviction  for  a  crime 
until  the  proof  fully  and  fairly  establishes  the  fact  that  such  a  crime 
has  actually  been  committed.  Whatever  the  charge  and  the  specifi- 
cations may  be  they  constitute  separate  and  distinct  facts  necessary 
to  be  established  by  the  proof  independently,  in  a  sense,  of  the  other 
fact  that  the  accused  was  in  any  way  connected  with  the  alleged  crime 
or  offense.  This  rule  is  of  such  binding  force  that  such  proof  is  not  dis- 
pensed with  even  in  cases  of  confession  by  the  accused,  as  the  confes- 
sion alone  does  not  prove  what  is  usually  termed  the  corpus  delicti.^ 

§  3464.  Intent — Proof. — Ordinarily,  a  criminal  intont  is  neces- 
sary in  order  to  constitute  crime.  And,  as  a  general  rule,  this  intent 
must  be  proved.  It  has  been  said  that  crimes  are  divided  into  two 
classes  with  reference  to  the  element  of  intent :  ( 1 )  "Those  in  which 
a  distinct  and  specific  intent,  independent  of  the  mere  act,  is  essen- 
tial to  constitute  the  offense."  To  this  class  belong  murder,  larceny, 
burglary,  desertion  and  mutiny.  (2)  "Those  in  which  the  act  is  the 
principal  feature,  the  existence  of  the  wrongful  intent  being  simply 

^  United  States  V.  Searcey,  26  Fed.  435;  1  Winthrop  Military  Law  & 
Pr.  474  n. 


747  RELEVANCY.  [§§  3465,  34GG. 

inferable  therefrom."  In  this  class  may  be  ranged  arson,  rape,  per- 
jury, disobedience  of  orders,  drunkenness  on  duty,  and  neglect  of 
duty;  usually  all  breaches  of  military  discipline  belong  to  this  class. 
In  the  first  class  of  cases  the  intent  must  be  proved  as  a  separate 
and  distinct  fact.  In  the  second  class  it  is  essential  to  prove  the  un- 
lawful act  only  and  the  law  then  supplies  the  intent.  In  many  cases 
in  both  classes  the  intent  may  be  inferred  from  the  proof  of  the  act, 
under  the  principle  that  every  person  is  presumed  in  law  to  have  in- 
tended what  he  actually  does.  "When  the  proof  shows  that  an  un- 
lawful act  was  done,  the  law  presumes  the  intent,  and  proof  of  the 
act  being  a  violation  of  law  is  proof  of  the  intent."* 

§  3465.  Relevancy  of  evidence. — Notwithstanding  the  simplicity 
of  the  practice  and  the  liberality  extended  in  the  introduction  of  the 
evidence,  a  court-martial  is  bound  by  the  rule  that  the  evidence  must 
be  relevant.  It  caimot  indulge  in  what  is  sometimes  termed  a  drag- 
net process  for  the  purpose  of  bringing  in  evidence  of  some  kind  to 
establish  the  fact  that  the  accused  at  some  time  was  guilty  of  some 
offense.  The  evidence  should  relate  solely  and  distinctly  to  the  charge. 
This  rule  does  not,  however,  prohibit  the  introduction  of  collateral 
facts  and  circumstances  which  tend  to  establish  the  particular  accu- 
sation. This  principle  is  stated  by  Mr.  Greenleaf  as  follows :  "Thus 
the  rule  respecting  the  relevancy  of  evidence  prohibits  the  court- 
martial  from  receiving  any  evidence  of  matters  not  put  in  is?ue  by 
the  charge,  or  which  would  implicate  the  prisoner  in  a  new  or  dis- 
tinct offense,  or  in  a  degree  or  extent  of  guilt  not  appearing  on  the 
charge  on  which  he  is  arraigned.  This  rule,  however,  does  not  for- 
bid inquiry  into  circumstances  which,  though  collateral,  and  not  men- 
tioned in  the  specifications,  yet  have  a  direct  bearing  on  the  matter 
charged."^ 

§  3466.  Documentary  evidence. — The  production  and  introduction 
in  evidence  of  documents  in  trials  and  proceedings  before  courts- 
martial  are  governed  by  the  same  general  rules  as  obtain  in  civil  and 
criminal  proceedings.  They  may  be  produced  on  a  subpoena  duces 
tecum  issued  by  the  judge-advocate ;  or  by  certified  copies  of  records, 
papers  and  documents.^     And  certified  copies  of  muster  rolls  from 

♦United    States    v.    Baldridge,    11         *3   Greenleaf  Ev..   §   476;    1   Win- 
Fed.  552;  1  Winthrop  Military  Law     throp  Military  Law  &  Pr.  482. 
&  Pr.  475.  'McClure   Dig.   Opinions.    §   1296; 


§§  3467-3469.]  evidence  in  general.  74& 

the  files  of  the  war  department  are  admissible  in  evidence.'  "Gen- 
eral orders  issued  from  the  War  Department  or  Headquarters  of  the 
Army  may  ordinarily  be  proved  by  printed  official  copies  in  the  usual 
form.  The  court  will  in  general  properly  take  judicial  notice  of  the 
printed  order  as  genuine  and  correct.  A  court-martial,  however, 
should  not,  in  general,  accept  in  evidence,  if  objected  to,  a  printed 
or  written  special  order,  which  has  not  been  made  public  to  the  army, 
without  some  proof  of  its  genuineness  and  oflficial  character."^ 

§3467.  Documents — ^Record  of  previous  trial. — It  sometimes  be-, 
comes  important  to  make  proof  of  the  testimony  introduced  at  a 
former  trial.  But  it  has  been  held  that  the  record  of  such  former 
trial  is  not  admissible  for  this  purpose.  So  the  record  of  a  board  of 
investigation  ordered  in  the  same  case  cannot  be  admitted  over  the 
objection  of  the  accused.  Except  in  certain  cases  provided  for  by 
the  articles  of  war,  the  testimony  at  a  former  hearing  if  desired  must 
be  introduced  in  the  same  manner  as  in  the  original  case.® 

§  3468.  Proof  of  enlistment. — As  shown  by  a  previous  section  the 
court  must  have  jurisdiction  of  the  person  of  the  accused.  Hence, 
the  proof  must  show  that  the  accused  belongs  to  a  class  over  which 
the  court-martial  has  jurisdiction.  It  must  show  that  he  is  an  en- 
listed soldier  or  that  he  is  such  a  civilian  whose  conduct  for  the  time 
being  is  subject  to  military  control.  Proof  that  tlie  accused  is  an  en- 
listed soldier  may  be  made  by  certified  copies  of  the  muster  rolls  from 
the  records  in  the  war  department.  This  is  regarded  and  held  as 
sufiicient  evidence  that  the  soldier  was  duly  enlisted  or  mustered  into 
the  service  and  is,  therefore,  held  as  a  soldier.  But  such  certified  copy 
of  the  record  is  subject  to  rebuttal  by  proof  of  fraud  or  illegality  in 
the  enlistment  or  muster,  and  the  accused  may  show  that  he  is  en- 
titled to  a  discharge.^" 

§  3469.  Documents — Telegrams. — Courts-martial  have  experienced 
some  difficulty  and  embarrassment  in  making  proof  of  the  sending 
or  receiving  of  telegraphic  messages.  The  rule  has  been  established  in 
these  courts  that  the  written  or  printed  copy  delivered  by  the  com- 
pany to  the  person  to  whom  it  was  addressed  is  generally  admissible 

1  Winthrop  Mil.  Law  &  Pr.  499,  et         « McClure  Dig.  Opinions,  §  1294. 

seq.  'McClure  Dig.  Opinions,  §  1291. 

^  McClure  Dig.  Opinions,  §  1293.  ^^  McClure  Dig.  Opinions,  §  1293. 


749  DEGREE  OF  PROOF REASONABLE  DOUBT.  [§    3470. 

in  evidence  in  the  absence  of  evidence  or  circumstances  casting  a 
reasonable  doubt  upon  either  its  genuineness  or  correctness.  Tliis 
rule,  however,  cannot  apply  where  it  is  necessary  to  pi-ove  that  the 
telegram  was  duly  sent  but  that  it  was  not  received  or  its  receipt  is 
denied.  In  such  cases  the  fact  must  be  proved  by  a  competent  wit- 
ness.^ ^  A  telegraph  operator  may  be  required  by  subpoena  duces 
tecum  issued  by  the  judge-advocate  to  appear  before  a  court-martial 
and  bring  with  him  either  the  original  or  a  copy  of  a  certain  tele- 
graphic dispatch.  But  where  the  operator  is  a  civilian  the  court- 
martial  has  no  power  to  compel  him  to  surrender  the  telegram  or  a 
copy  to  be  used  in  evidence.^- 

§  3470.  Degree  of  proof — Reasonable  doubt. — The  rule  as  to  the 
degree  of  proof  and  as  to  reasonable  doubt  is  stated  by  Col.  Win- 
throp  as  follows :  "In  a  civil  action  the  plaintiff  needs  in  general  but 
to  make  out  a  prima  facie  case,  or  to  offer  evidence  materially  pre- 
ponderating over  that  of  the  defendant,  to  give  him  the  verdict  of  judg- 
ment. But  the  quantity  of  the  proof  required  (on  the  part  of  the 
prosecution)  is  considerably  greater  upon  criminal  trials,  where  there 
exists  always  in  favor  of  the  accused  the  presumption  of  innocence — 
a  presumption  from  wliich  results  the  familiar  rule  of  criminal  evi- 
dence that,  to  authorize  a  conviction,  the  guilt  of  the  accused  must 
be  established  beyond  a  reasonable  doubt.  By  'reasonable  doubt'  is 
intended  not  fanciful  or  ingenious  doubt  or  conjecture,  but  sub- 
stantial, honest,  conscientious  doubt,  suggested  by  the  material  evi- 
dence in  the  case.  'It  is,'  as  expressed  by  the  court  in  a  recent  case, 
Sm  honest,  substantial  misgiving,  generated  by  insufficiency  of  proof. 
It  is  not  a  captious  doubt,  not  a  doubt  suggested  by  the  ingenuity  of 
counsel  and  unwarranted  by  the  testimony;  nor  is  it  a  doubt  born 
of  a  merciful  inclination  to  permit  the  defendant  to  escape  conviction, 
nor  prompted  by  sympathy  for  him  or  those  connected  with  him.' 
The  meaning  of  the  rule  is  that  the  proof  must  be  such  as  to  exclude, 
not  every  hypothesis  or  possibility  of  innocence,  but  any  fair  and 
rational  hypothesis  except  that  of  guilt;  what  is  required  being  not 
an  absolute  or  mathematical  but  a  'moral  certainty.'  A  court-martial 
which  acquits  because,  upon  the  evidence,  the  accused  may  possibly 
be  innocent  falls  as  far  short  of  appreciating  the  proper  quantum  of 
])roof  required  in  a  criminal  trial,  as  does  a  court  which  convicts 
because  the  accused  is  probably  guilty.    However  convincing  the  testi- 

"McClure  Dig.  Opinions,  §  1295.  '=McClure  Dig.  Opinions,  §  1296. 


§§  3471-3473.]  evidence  ix  general.  750 

mony,  it  is  nearly  always  possible  that  the  accused  may  be  innocent; 
on  the  other  hand,  though  the  probabilities  may  favor  his  guilt,  a 
material  and  sensible  doubt  of  the  same  may  exist,  of  which  he  is 
entitled  to  the  benefit.  It  is  to  be  observed  that  the  general  rule  in- 
dicated applies  alike  to  each  of  the  three  main  facts  required  to  be 
made  out  upon  a  trial,  in  order  to  establish  guilt,  viz. — the  corpus 
delicti,  the  identity  of  the  accused  with  the  real  offender,  and  the 
requisite  criminal  animus.  Each  must  be  proved  beyond  a  reasonable 
doubt."i3 

§  3471.  Eank  of  officer — Effect  on  evidence. — An  officer  is  not  ex- 
cused from  testifying  as  a  witness  on  account  of  rank.  The  rules 
of  evidence  in  these  military  courts  should  be  applied  without  re- 
gard to  rank.  And  a  ranking  officer  who  testifies  as  a  witness  for  the 
prosecution  may  be  asked  on  cross-examination  if  he  has  not  ex- 
pressed animosity  toward  the  accused.  So  he  may  be  asked  if  he  has 
not  made  statements  out  of  court,  contradictory  to,  or  materially 
different  from  the  testimony  given  at  the  trial.  And  the  officer,  as 
such  witness,  cannot  refuse  to  answer  on  the  grounds  that  questions 
which  tend  to  discredit  him  are  disrespectful.^* 

§  3472.  Opinion  evidence. — The  general  rules  as  to  expert  evi- 
dence apply  to  proceedings  and  witnesses  before  courts-martial.  The 
opinions  of  expert  witnesses  are  competent  and  admissible  when  de- 
pending on  knowledge  of  special  branches  of  military  science.  But 
such  opinions  are  not  admissible  on  general  questions  of  military 
science  where  the  members  of  the  court-martial  are  as  competent  to 
form  the  correct  conclusions  as  the  witness.^^ 

§  3473.  Burden  of  proof. — The  rule  as  to  the  burden  of  proof  is 
stated  by  Col.  Winthrop  as  follows :  "It  is  a  general  rule  of  evidence 
that  'the  obligation  of  proving  any  fact  lies  upon  the  party  who  sub- 
stantially asserts  the  affirmative  of  the  issue.'  And  upon  a  criminal 
trial,  where  there  stands  at  the  threshold  the  presumption  of  the  in- 
nocence of  the  accused,  and  the  affirmative  of  the  issue  is  thus  neces- 
sarily asserted  by  the  government,  the  burden  is  imposed  upon  the 
prosecution  of  proving  the  existence  of  every  material  fact  required 

"1  Winthrop  Mil.  Law  &  Pr.  476.  pel's  Case,  2  McArthur  Ct.  Mar.  135; 

"McClure   Dig.   Opinions,   §   1286,  3   Greenleaf  Ev.,   §   478.    As  to  em- 

and  note.  ployment    of    experts,    see     Smith, 

"Gen.  Whitelocke's  Case.   2  Mac-  Matter  of,  24  Ct.  CI.  209. 
Arthur  Ct.  Mar.  147;  Admiral  Kep- 


751  BURDEN    OF    PROOF — CHARACTER    EVIDENCE.       [§§    3474,    3475. 

to  establish  the  offense  charged.  The  onus  proband!  is  not  always 
confined  to  the  proof  of  a  proposition  affirmative  in  form.  The  gist 
of  the  offense  may  be  criminal  neglect,  and  here  the  prosecution  is 
called  upon  to  prove  a  negative.  This  more  frequently  occurs  in  mili- 
tary than  in  civil  cases,  several  of  the  Articles  of  War  making  pun- 
ishable in  terms  the  not  doing  of  some  duty  incidental  to  the  military 
status,  or  the  doing  of  some  act  without  the  autliority  of  the  proper 
superior.  One  or  the  other  of  these  negative  elements  may  be  per- 
ceived in  offenses  designated  in  Articles  7,  15,  16,  17,  23,  31,  32,  33, 
34,  35,  40,  60,  67,  69.  But  it  is  the  general  charge  laid  under  Article 
62  of  neglect  of  duty,  to  the  prejudice  of  good  order  and  military 
discipline,  that  most  conspicuously  illustrates  the  frequency  of  the 
obligation  to  prove  a  negative  which  is  imposed  on  the  government  in 
military  cases.  Yet  the  negative  here  is  often  but  an  affirmative  in 
another  form ;  the  issue  requiring  the  proving  affirmatively  of  the  com- 
mission of  a  specific  act  the  doing  of  which  is  alleged  to  constitute 
the  offense."^*' 

§  3474.  Burden  of  proof  never  shifts. — The  prosecution  is  always 
required  to  make  out  the  offense  charged.  This  burden  never  shifts 
to  the  accused.  The  accused  may  set  up  and  present  a  defense  which 
entitled  him  to  an  acquittal;  this  defense  may  be  for  him  to  estab- 
lish; but  the  burden  is  not  on  him  to  make  out  this  defense  either 
by  a  preponderance  or  beyond  a  reasonable  doubt.  If  by  proof  of  his 
defense  he  raises  a  reasonable  doubt  as  to  the  case  made  by  the  prose- 
cution it  is  sufficient.  This  rule  is  stated  by  Col.  Winthrop  thus: 
"The  burden  of  proof  of  guilt  never  shifts  from  the  side  of  the  prose- 
cution. The  accused  may,  indeed,  admit  the  commission  by  him  of 
the  act  charged,  claiming  that  it  did  not  constitute  an  offense  on  his 
part  because  of  the  existence  of  a  certain  fact  which  he  sets  up  as  a 
defense.  Asserting  this  defense  the  burden  is  upon  him  to  maintain 
it.  But  the  onus  of  proving  guilt  remains  with  the  state,  and  if  the 
accused  so  far  makes  out  his  defense  as  to  involve  the  main  issue  in  a 
reasonable  doubt,  the  prosecution  must  dispel  this  doubt  by  further 
evidence,  in  order  to  obtain  a  conviction."^'' 

§  3475.  Character — Proof  as  to. — Proof  of  character  in  military 
courts  is  in  the  main,  governed  by  the  same  riiles  as  in  civil  and  crim- 
inal courts.     Evidence  of  previous  good  character  may  be  introduced 

^n  Winthrop  Mil.  Law  &  Pr.  485.  ^"  1  Winthrop  Mil.  Law  &  Pr.  485. 


§§  3476,  3477.]  evidence  in  general.  753 

hy  the  accused  as  part  of  his  defense.  But  this  evidence,  as  in  other 
cases,  must  be  confined  to  the  element  of  character  involved  in  the 
charge.  As  sometimes  stated  it  must  be  in  some  degree  "apposite  to 
the  species  of  criminality  charged."  The  effect  of  proof  of  character 
is  usually  to  raise  a  reasonable  doubt,  on  the  improbability  of  a  person 
of  such  good  character  committing  the  offense  charged.  It  is  most 
valuable  in  doubtful  cases.  In  military  cases  proof  of  character  is 
seldom  offered  as  a  defense ;  it  is  usually  intended  for  the  court  or  the 
reviewing  officer  to  consider  in  mitigation  of  the  punishment.  For 
this  purpose  it  is  often  presented  in  case  of  a  plea  of  guilty.  When 
thus  offered  it  is  not  subject  to  tlie  ordinary  limitations  as  to  time 
or  the  element  of  character  involved  in  the  charge.  It  "may  exhibit 
the  reputation  or  record  of  the  accused  in  the  service;  for  efficiency, 
fidelity,  subordination,  temperance,  courage  or  any  of  the  traits  or 
habits  that  go  to  make  the  good  officer  or  soldier.  It  need  not  be  lim- 
ited to  general  character,  but  may  include  particular  acts  of  good 
conduct,  bravery,"  etc.^* 

§  3476.  Impeachment  of  witness. — The  general  rules  as  to  the  im- 
peachment of  witness  apply  in  courts-martial.  A  witness  may  be 
impeached,  (1)  by  discrediting  him  on  his  cross-examination;  (2)  by 
proof  of  contradictory  statements  made  out  of  court;  (3)  by  proof 
showing  that  his  general  reputation  for  truth  and  veracity  is  bad.^^ 
Before  proof  of  contradictory  statements  can  be  offered,  the  witness 
must  first  be  asked  on  cross-examination  if  he  did  not  at  a  particu- 
lar time  and  place  make  such  a  statement.  In  case  of  denial,  the 
impeaching  witness  can,  at  the  proper  time,  be  introduced  and  state 
what  the  first  witness  said.  But  this  evidence  of  the  impeaching 
witness  does  not  prove  any  fact ;  its  only  purpose  is  to  impeach  and 
discredit  the  first  witness. ^° 

§  3477.  Depositions. — Depositions  may  be  taken  and  read  in  evi- 
dence before  courts-martial.  The  statute  excludes  depositions,  how- 
ever, in  all  capital  eases;  that  is  in  all  cases  where  the  death  penalty 
may  be  assessed.  Depositions  of  only  such  witnesses  as  reside  beyond 
the  limits  of  the  state,  territory  or  district  can  be  taken. ^^     Deposi- 

^'1  Winthrop  Mil.  Law  &  Pr.  533.  Gilp.    (U.   S.)    60,   11    Fed.   Gas.   No. 

^»  1  Winthrop  Mil.  Law  &  Pr.  526.  6015. 

Vol.  n,  Chap.  45.  ^^  Article  91;    McClure  Dig.   Opin- 

"^'1  Winthrop  Mil.  Law  &  Pr.  527,  ions,  §  256;   Military  Laws  of  U.  S. 

and    notes;     Hand    v.    Elvira.    The,  (Davis)  744,  745. 


753  DEPOSITIONS,  [§  3477. 

tions  should  now  be  taken  before  one  of  the  military  officers  specified 
in  the  statute,  or  if  he  is  not  accessible  then  by  a  civil  officer  com- 
petent to  administer  oaths  generally. -^  The  authority  of  the  officer 
must  sufficiently  appear.^^  It  is  given,  as  a  recommendation  at  least, 
that  the  depositions  of  officers  and  public  officials  should  be  taken 
in  proper  eases  where  they  are  stationed  at  points  distant  from  the 
place  of  trial.  Nor  should  a  high  officer  or  civilian,  such  as  the  Secre- 
tary of  War,  be  required  to  attend  as  a  witness  when  the  same  facts 
can  be  proved  by  other,  or  where  proof  can  be  made  by  certified  copies 
of  records.^*  The  party  taking  the  deposition  must  put  it  all  in  evi- 
dence; he  cannot  use  the  parts  favorable  to  himself  only;  and  if  he 
declines  to  use  it  the  adverse  party  may  put  it  in  evidence. ^^ 

=^Acts  July  27,  1892.  §  4;  McClure  =*  McClure  Dig.  Opinions,  §  257. 

Dig.  Opinions,  §§  264,  269.  °  McClure  Dig.  Opinions,    §§    258, 

^  2  Opinion  Attorney-General  344;  259;  Military  Laws  of  U.  S.  (Davis) 

19    Opinion    Attorney-General    501;  744,  n.  1. 
27  U.  S.  Stat,  at  Large  278. 


Vol.  4  Elliott  Ev.— 48 


CHAPTER  CLXXV. 


EVIDENCE   IN    PARTICULAR    CASES. 


Sec. 

3478. 
3479. 
3480. 

3481. 


3482. 


3483. 


3484. 

3485. 
3486. 

8487, 


Absence  without  leave. 

Burglary. 

Conduct  to  the  prejudice  of 
good  order  and  discipline. 

Conduct  to  the  prejudice  of 
good  order  —  Member  of 
court-martial. 

Conduct  to  the  prejudice  of 
good  order — On  part  of  offi- 
cers. 

Conduct  to  the  prejudice  of 
good  order — On  part  of  sol- 
diers. 

Conduct  unbecoming  an  offi- 
cer, etc. 

Desertion — Proof. 

Desertion  —  Absence  without 
leave. 

Desertion — Penalty. 


Sec. 

3488.  Desertion— E  nlistment  in 

enemy's  ari!ay. 

3489.  Desertion — Escape. 

3490.  Desertion  —  Pay     and     forfei- 

tures. 

3491.  Desertion — Defense. 

3492.  Desertion — Reward  for  arrest. 

3493.  Drunkenness  while  on  duty. 

3494.  Drunkenness — Proof. 

3495.  Embezzlement. 

3496.  Embezzlement — Proof    and 

presumption. 

3497.  Enlistment — Proof. 

3498.  Fraudulent  claims. 

3499.  Mutiny— Proof. 

3500.  Mutiny— Intent. 

3501.  Mutiny — Suppression. 

3502.  Relieving  the  enemy. 

3503.  Sleeping  on  post. 


§  3478.  Absence  without  leave.— The  Articles  of  War  provide  for. 
the  punishment  of  any  soldier  absent  without  leave.'  There  is  a 
clear  distinction  between  absence  without  leave  and  desertion,  and 
the  charge  for  the  latter  must  be  under  a  separate  article.^'  So,  a 
violation  of  any  one  of  these  articles  should  be  charged  under  its  ap- 
propriate number.  Thus,  a  violation  of  Article  33  should  not  be 
charged  under  Article  32.=*  Proof  of  absence  without  leave  is  suffi- 
cient to  forfeit  the  offender's  pay  for  the  time  absent.*  But  tliere 
is  no  provision  for  requiring  a  soldier  who  has  been  absent  without 
leave  to  make  good  the  time  lost,  as  in  case  of  desertion.'     On  a  con- 


^  Articles  31,  32,  33,  34. 

=  Article  48.  See,  §§  3485,  3486. 
But  see,  Dynes  v.  Hoover,  20  How. 
(U.  S.)  65. 

^McClure  Dig.  Opinions,    §  376. 


*  McClure  Dig.  Opinions,  §§  375, 
378. 

^  McClure  Dig.  Opinions,  §  375. 
See,  §  3487. 


754 


755  BURGLARY.  [§§  347  D,  3480. 

viction  of  the  charge  of  absence  without  leave  the  accused  will  be 
charged  with  the  expenses  of  transportation  to  his  proper  station.^ 
Summarily  dropping  a  volunteer  officer  for  absence  without  leave 
is  equivalent  to  a  discharge  without  honor.'  The  offense  cannot  be 
presumed  from  the  mere  fact  of  absence.  That  the  absence  was  un- 
authorized can  be  proved  by  the  officer  whose  duty  it  was  to  grant 
leave.  The  entry  of  the  fact  on  the  morning  report  book  or  muster 
roll  would  be  insufficient. 

§  3479.  Burglary. — A  soldier  may  be  tried  before  a  court-martial 
on  a  charge  of  burglary.  But  the  charge  should  be  under  Article  62 
with  the  specification  of  burglariously  entering  the  tent,  barracks  or 
quarters  of  another  where  the  offense  was  committed.  Wliere  the 
specifications  set  forth  that  a  soldier  forcibly  entered  the  quarters  of 
an  officer  in  the  night  time,  with  the  intent  to  steal,  it  was  held  that 
the  charge  was  not  defeated  because  the  proof  showed  that  he  entered 
through  an  open  window,  and  hence  that  the  essential  common  law  ele- 
ment of  breaking  was  absent,  but  it  was  sufficient  proof  of  disorder 
and  a  breach  of  military  discipline  under  Article  62.  So,  the  charge 
of  burglariously  breaking  and  entering  a  post  trader's  store  in  the 
daytime,  may  be  punished  as  a  breach  of  army  discipline.* 

§  3480.     Conduct  to  the  prejudice  of  good  order  and  discipline. 

The  most  comprehensive  of  all  the  Articles  of  War  in  relation  to 
the  punishment  of  offenses  not  specifically  named  and  defined  reads 
as  follows:  "All  crimes  not  capital,  and  all  disorders  and  neglects, 
which  officers  and  soldiers  may  be  guilty  of,  to  the  prejudice  of  good 
order  and  military  discipline,  though  not  mentioned  in  the  foregoing 
Articles  of  War,  are  to  be  taken  cognizance  of  by  a  general  or  a  regi- 
mental, garrison  or  field-officer's  court-martial,  according  to  tlie  na- 
ture and  degree  of  the  offense,  and  punished  at  the  discretion  of 
such  court."^  The  evident  purpose  of  this  article  is  to  cover  every 
conceivable  or  imaginary  offense  not  specifically  stated  in  other  ar- 
ticles, with  the  view  of  preventing  the  impossibility  of  any  offending 
officer  or  soldier  in  the  army  escaping  justice,  and  consequently  to 
preserve  the  best  order  and  the  strictest  discipline  in  the  military 
and  naval  service.  "Wherever  the  offense  committed  is  one  not  cer- 
tainly, or  fully,  designated  or  described  in  some  other  particular  ar- 

"McClure  Dig.  Opinions.  §  1070.  *^  McClure  Dig.  Opinions,  §  642. 

^McClure  Dig.  Opinions,   §  1135.  » Article  62. 


§§  3481,  34S2.J     evidkxcl;  in  pahticulak  cases.  756 

tide,  or  where,  though  so  designated  no  punishment  is  assigned  for 
its  commission,  or  where  it  is  doubtful  under  which  of  two  or  more 
articles  the  oifender  should  be  prosecuted,  recourse  is  had  to  this 
comprehensive  and  serviceable  provision  as  the  authority  and  founda- 
tion for  tli,e  charges  and  proceedings.""  The  word  "crimes,"  as  here 
used,  has  been  held  to  mean  military  offenses  of  a  more  serious  char- 
acter than  disorders  and  neglects,  and  to  include  such  as  might  be 
civil  crimes,  but  where  no  punishment  is  otherwise  provided  in  the 
Articles  of  War.  Both  terms,  "crimes"  and  "disorders  and  neglect," 
are  qualified  by  the  phrase  "to  the  prejudice  of  good  order  and  mili- 
tary discipline."  Thus,  any  crime,  not  capital,  and  not  mentioned 
in  any  other  article,  would  properly  be  chargeable  under  this,  if  it  is 
to  the  prejudice  of  good  order  and  military  discipliae.^^ 

^  3481.  Conduct  to  the  prejudice  of  good  order — ^Member  of 
court-martial. — Under  Article  62  charges  may  be  made  against  mem- 
bers of  a  court-martial.  Col.  Winthrop  gives  the  following  list  as 
illustrating  the  number  and  character  of  such  charges :  "Improperly 
disclosing  the  proceedings  had  in  secret  session;  refusing  to  vote  a 
punishment  after  conviction;  appearing  drunk  before  the  court,  or 
behaving  disrespectfully  to  the  court;  as  a  witness  failing  to  com- 
ply with  a  summon;  testifying  falsely  under  oath;  using  disrespect- 
ful language,  or  behaving  disrespectfully  or  contumaciously  to  the 
court;  as  an  accused  (or  counsel  for  an  accused),  transcending  the 
privilege  of  the  defense  or  statement  by  indulging  in  unwarrantable 
strictures  upon  a  superior  officer,  or  gross  personalities;  attempting 
to  suborn  or  intimidate  a  witness ;  contempt  of  court,  where  not  pun- 
ished summarily  under  Article  86.^^ 

§  3482.  Conduct  to  prejudice  of  good  order,  etc. — On  part  of  of- 
ficers.— The  best  rules  of  evidence  and  tlie  proof  required  under 
Article  62  is  to  be  found  in  the  charges  which  have  been  made  and 
sustained  under  this  article.  The  nature  of  the  charge  indicates  the 
character  of  the  proof  required  to  sustain  it.  Col.  Winthrop  gives 
the  following  as  examples  of  the  charges  made  and  sustained  against 
officers  under  this  article,  with  reference  to  the  general  order  where 
they  may  be  found :   "N'eglect  to  observe,  or  carelessness  in  observing, 

1"  2  Winthrop  Mil.  Law  &  Pr.  1118.  '-  2  Winthrop  Mil.  Law  &  Pr.  1131; 

"McClure   Dig.    Opinions,    §§  148,  McClure's     Dig.     Opinions,     §§  148- 

149.    See  also.  Mason,  Ex  parte,  105  160. 
U.  S.  696. 


757  CONDUCT  PREJUDICIAL  TO  GOOD  OUriKi;.       [§  3482. 

standing  post  orders;  neglect  of  official  dutj'  in  devolving  important 
work  upon  an  inadequate  subordinate;  insubordinate  conduct  not 
properly  chargeable  under  Articles  20  or  21 ;  neglect  to  attend  drills, 
or  other  exercises  or  duties  not  chargeable  under  Article  33 ;  failure 
by  a  commanding  officer  to  be  present  and  properly  exercise  command  ; 
failure  to  maintain  discipline  in  his  conimaud  by  the  suppression  of 
disorders;  failure  to  maintain  and  restore  the  public  peace  on  an  oc- 
casion of  a  riot  which  he  was  called  upon  to  suppress;  failure  to 
properly  supervise  and  inspect  public  work  in  his  charge;  failure  to 
bring  offending  inferiors  to  punishment ;  allowing  illegal  or  irregular 
practices  within  his  command ;  abuse  of  authority  in  assaulting  or 
punishing  inferiors;  arbitrary  treatment  of  camp  followers;  allow- 
ing a  soldier  to  go  on  duty  when  known  to  be  materially  under  the 
influence  of  liquor;  employment  of  soldiers  for  non-military  or  other 
illegal  uses;  neglect  of  public  animals  in  his  charge:  exceeding  ex- 
tended limits  of  arrest;  assuming  a  rank  superior  to  his  own — as  a 
lieutenant  the  rank  of  captain;  inefficiency  in  service  against  Indians; 
rendering  himself  unfit  for  duty  by  excessive  use  of  spirituous  liquors ; 
gambling,  by  an  officer  not  a  disbursing  officer,  with  other  officers 
or  enlisted  men;  altercation  with  another  officer  in  the  presence  of 
inferiors ;  fighting  a  duel ;  inciting  another  officer  to  challenge  him  to 
a  duel ;  preferring  or  making  groundless  charges ;  publicly  demeaning 
himself  by  receiving  chastisement  from  an  inferior,  without  prop- 
erly resenting  it  or  taking  measures  to  bring  the  other  to  punishment ; 
making  or  causing  publications  in  newspapers,  pamphlets,  etc.,  of 
strictures  upon  the  act  or  conduct,  official  or  personal,  of  other  offi- 
cers, or  upon  the  administration  of  the  army;  taking  part  in  meet- 
ings convened  for  the  purpose  of  expressing  disapprobation  of  the 
orders  or  acts  of  superiors;  entering  into  alleged  combinations  with 
other  officers  or  soldiers ;  joining  with  others  in  requesting  the  resigna- 
tion of  a  commanding  officer;  tendering  his  resignation  in  language 
disloyal  to  the  government;  expressing  sentiments  disloyal  to  the 
government,  and  in  sympathy  with  the  enemy ;  causing  troops  to  be 
transported  on  a  steamer  known  to  be  unsafe;  culpable  neglect  of 
the  sick,  or  malpractice,  by  a  surgeon;  inexcusable  neglect  by  a  chap- 
lain to  perform  funeral  services;  drunken  conduct  in  public  in  the 
presence  of  military  inferiors;  disrespectful  and  insulting  language 
to  a  superior  officer,  in  the  presence  of  officers  and  soldiers,  while  all 
were  held  confined  as  prisoners  of  war  by  the  enemy ;  failure  to  make 
proper  investigation  as  member  of  a  board  of  survey ;  ordering  a  garri- 


§    3483.]  EVIDENCE    IX    PARTICULAR    CASES.  758 

son  court  to  try  a  capital  offense,  and  putting  the  members  in  arrest 
because  the  court  held  that  it  had  no  Jurisdiction."" 

§  3483.     Conduct  to  the  prejudice  of  good  order,  etc. — On  part  of 
soldiers. — Col.  Winthrop  gives  the  following  instance  of  conduct  to 
the  prejudice  of  good  order  on  the  part  of  enlisted  men:    "Special 
neglects  or  violations  of  duty  on  guard,  as  omission  to  challenge,  in 
time   of  war;   allowing   or   suffering   prisoners   to   escape;   bringing 
whiskey   into   guard-house;    improperly    relieving   sentinels   by   non- 
commissioned officer  of  the  guard ;  mutilating  the  guard  book ;  escape 
while  in  confinement  or  under  arrest,  or  under  sentence;  attempt  to 
desert ;  making  preparations  to  desert ;  failing  to  appear  on  duty  with 
a  proper  uniform;  or  appearing  with  dirty  or  torn  clothing;  being 
offensively  unclean  in  person;  failing  to  appear  or  appearing  drunk 
before  a  court-martial,  as  an  accused  or  as  a  witness;  giving  false 
testimony  before  a  court-martial,  or  suborning  or  conniving  at  false 
testimony  by  another  attempting  to  suborn  a  witness;  attempting 
to  intimidate  one  who  was  to  be  a  material  witness  by  a  threatening 
letter;  refusing  to  testify  at  all  as  a  witness;  gambling  by  non-com- 
missioned officers  with  enlisted  men  in  the  guard-house,  or  in  bar- 
racks or  allowing  them  to  gamble;  gambling  by  one  soldier  with  an- 
other; the  conducting,  by  an  enlisted  man,  of  a  gambling  house  or 
table  at  or  near  a  military  post  for  soldiers  to  play  at ;  straggling  on 
the  march;  malingering,  or  self-maiming;  maiming  of  another  sol- 
dier; cruel  or  injurious  treatment  of  his  horse  by  a  mounted  soldier, 
or  of  any  public  animal  by  any  soldier;  malicious  destruction  of 
property  of  civilians ;  neglect  by  non-commissioned  officer  to  cause  to 
be  punished  or  tried  soldiers  under  his  command  who  have  destroyed 
or  appropriated  property  of  civilians;  by  lawless  conduct  causing 
himself  to  be  arrested,  tried  and  convicted  by  the  civil  authorities, 
thus  depriving  the  United  States  for  a  considerable  period  of  the  serv- 
ices due  under  his  enlistment;  disorderly  conduct  in  a  town,  induc- 
ing  arrest  by   civil   authorities;   assaulting  persons   and   damaging 
property  on  a  railway  train  near  a  military  post ;  misconduct  at  target 
practice ;  not  giving  proper  attention  to  his  lessons  at  the  post  school ; 
neglect  of  duty  by  private  of  hospital  corps  in  caring  for  patients; 
failing  by  a  hospital  steward  to  put  up  prescriptions  correctly ;  refusing 
to  submit  to  treatment  in  hospital  necessary  to  render  him  fit  for 
duty :  refusing  to  submit  to  a  necessary  and  proper  operation  directed 

'■•2  Winthrop  Mil.  Law  &  Pr.  1128    et  seq.  and  notes. 


759  CONDUCT    UXRECOMIN'G    AX    OFFICER.  [§    3484. 

by  a  surgeon  in  charge  of  hospital;  careless  or  wanton  discharge  of 
fire-arms  so  a?  to  endanger  man  or  animal;  assuming  by  a  soldier  to 
be  a  corporal  in  the  recruiting  service,  and  acting  as  such  in  the  en- 
listment of  recruits;  falsely  personating  and  acting  as  an  officer; 
writing,  and  publisliing  in  a  newspaper,  statements  grossly  defam- 
ing and  misrepresenting  the  militaiT  service;  writing  an  improper 
complaining  letter  to  tlie  colonel  of  the  regiment  without  first  pre- 
senting his  grievance  to  his  company  commander;  combining  and 
holding  meetings  in  a  spirit  of  insurbordination  against  superior  au- 
thority; inciting,  by  a  sergeant,  the  men  of  the  company  to  insub- 
ordination, by  incendiary  circulars;  abusing  or  maltreating  his  wife, 
in  the  presence  of  other  soldiers  at  a  military  post ;  similarly  assault- 
ing any  woman;  in  uniform  and  in  the  presence  of  other  soldiers, 
disturbing  the  services  at  church  of  the  Salvation  Army,  and  assault- 
ing those  who  ejected  him;  failing  to  properly  deliver  the  mail,  or 
opening  the  mail  by  a  soldier  detailed  as  mail  carrier ;  engaging,  by 
a  non-commissioned  officer,  in  a  public  sparring  exhibition  at  a  liquor 
saloon;  illegally  introducing  liquor  into  the  Indian  country;  through 
carelessness  setting  fire  to  the  forest  in  a  National  Park ;  joining  and 
parading  with  an  association  of  Fenians,  reported  to  be  in  armed 
hostility  to  a  nation  at  peace  with  the  United  States.' 


"14 


§  3484.  Conduct  unbecoming  an  officer,  etc. — Any  officer  who  is 
convicted  of  conduct  unbecoming  an  officer  and  a  gentleman  shall 
be  dismissed  from  the  service. ^^  The  unbecoming  conduct  here  con- 
templated is  not  criminal  or  infamous.  But  proof  of  conduct  that  is 
morally  unbefitting  and  unworthy  a  man  of  honor.  In  other  words, 
the  conduct  "must  offend  so  seriously  against  law,  justice,  morality 
or  decorum  as  to  expose  to  disgrace,  socially,  or  as  a  man,  the  of- 
fender, and  at  the  same  time  must  be  of  such  a  nature  or  committed 
under  such  circumstances  as  to  bring  dishonor  or  disrepute  upon  the 
military  profession  which  he  represents.^"  But  it  has  been  held  that 
the  conduct  need  not  be  scandalous  or  infamous ;  nor  need  it  compro- 
mise the  honor  of  the  officer."  Under  this  article  falls  the  charges 
such  as  making  false  reports  to  a  superior;  false  certificate  to  a 
voucher,  roll  or  return ;  preferring  false  accusations  against  an  officer ; 
attempting  to  induce  an  officer  to  join  in  a  fraud  ;  an  attempt  at  sub- 

"2  Winthrop  Mil.  Law  &  Pr.  1133  '« Winthrop  Mil.  Law  &  Pr.  1104 
et  seq.;  G.  O.  12  of  1904.  et  seq. 

"Article  61.    See  Carter.  In  re.  97         "  McClure  Dig.  Opinions,  §  123. 
Fed.  496;  United  States  v.  Fletcher, 
148  U.  S.  84,  Sup.  Ct. 


§    3485.]  EVIDENCE    IN    PARTICULAR    CASES.  760 

ornation  of  perjury;  corruptly  attempting  to  induce  an  officer  who 
was  a  member  of  a  post  council  to  vote  for  a  particular  candidate; 
the  appropriation  of  food  furnished  by  the  government  by  a  surgeon 
to  himself  and  to  his  private  mess;  the  violation  of  a  pledge  of 
promise  and  honor  made  by  one  officer  to  his  superior ;  drunkenness 
by  an  officer  in  uniform  at  a  public  place ;  fighting  with  other  officer 
in  a  public  place;  visiting  disreputable  gambling  houses  and  gam- 
bling. ^^  The  neglect  or  refusal  to  pay  honest  debts,  under  certain 
circumstances,  has  been  held  chargeable  under  this  article.  Proof 
of  giving  a  check  on  the  bank  when  the  drawer  knew  he  had  no  money 
on  deposit;  so  proof  of  loaning  of  money  to  soldiers  of  his  command 
at  the  rate  of  one  hundred  per  cent.,  are  sufficient  to  convict  under 
this  article.^^  Proof  of  bigamy,  desertion  of  wife  and  pretending  to 
marry  another  woman;  or  of  assaulting,  abusing  and  beating  his 
wife;  of  the  institution  of  fraudulent  divorce  proceedings  and  the 
manufacture  of  false  testimony;  or  of  abandonment  and  failure  to 
provide  for  his  wife,  are  all  held  to  be  sufficient  evidence  under  this 
article.  =^**  So,  proof  of  attempting  to  alienate  the  affections  of  the 
wife  of  another  officer.^^ 

§  3485.  Desertion — Proof. — The  Articles  of  War  make  a  differ- 
ence between  desertion  and  absence  without  leave.  Desertion  is  more 
than  absence;  it  is  voluntary  absence  without  the  intention  of  re- 
turning. To  establish  desertion  proof  of  two  things  is  required: 
(1)  The  voluntary  unauthorized  absence  and,  (2)  the  intent  per- 
manently to  abandon  the  service.  The  intent  may  sometimes  be  in- 
ferred, not  from  the  fact  of  the  absence,  but  from  circumstances  at- 
tending the  leaving,  and  the  duration  of  the  absence.  Unexplained 
protracted  absence  may  furnish  proof  of  the  intent.  To  determine 
whether  it  is  desertion  or  absence  without  leave,  all  the  circum- 
stances in  connection  with  the  leaving,  absence,  or  return  if  volun- 
tary or  compulsory,  should  be  considered,  and  each  case  must  be  gov- 
erned by  its  own  peculiar  facts.  No  general  rule  of  proof  can  be 
"iven."     A  charge  of  desertion  on  a  roll  book  is  no  evidence  of  the 

'^McClure  Dig.  Opinions,  §§  124-  =^  G.  0.  63  of  1904.  For  a  very 
131;  G.  O.  66  of  1904;  G.  O.  64  of  complete  list  of  offenses  under  this 
]^9Q4  article  see  2  Winthrop  Mil.  Law  & 

i»  McClure  Dig.  Opinions,  §§  133-     Pr.  1107  and  notes,  et  seq. 
137;  G.  O.  66  of  1904.  ^McClure  Dig.  Opinions,  §  1053. 

*"  McClure  Dig.  Opinions,  §§  139- 
141. 


761  DESERTiox.  [§§  3-480,  .3487. 

offense,     ^Neither  such  record  nor  the  hearsay  statement  of  any  oi'- 
ficer  or  person  can  be  taken  as  proof  of  the  fact  of  desertion.-^ 

§'  3486.  Desertion — Absence  without  leave. — Tlie  offense  ff  ab- 
sence without  leave  is  included  in  every  charge  of  desertion.  For 
this  reason  every  trial  on  a  charge  of  desertion  is  in  fact  a  trial  for 
absence  without  leave ;  and  if  the  proof  fails  to  sliow  a  desertion  the 
accused  may  be  convicted  of  the  lesser  offense.  But  a  conviction  of 
such  lesser  offense  under  such  a  charge  is  an  acquittal  of  the  greater. 
So,  an  acquittal  under  such  a  charge  without  reservation  is  an  ac- 
quittal of  both  grades  of  offense.^* 

§  3487.     Desertion — Penalty. — There  are  two  kinds  of  punishment 
inflicted  on  proof  of  desertion:     (1)  The  accused  shall  be  liable  to 
serve  for  such  period  as  shall,  with  the  time  he  may  have  served  previ- 
ous to  the  desertion,  amount  to  the  full  term  of  his  enlistment.    (2) 
He  shall  be  tried  by  a  court-martial  and  punished,  even  if  the  term 
of  his  enlistment  expired  before  his  arrest  and  trial.- =     It  is  observed 
that  the  time  lost  by  desertion  is  independent  of  the  punishment  and 
need  not  be  included  as  a  part  of  the  sentence.     If  the  sentence  is 
disapproved,  it  is  equivalent  to  an  acquittal  and  he  is  not  required 
to  serve  the  extra  time.    But  he  is  not  entitled  to  pay  during  the  time 
of  absence.^"     The  time  passed  by  a  deserter  in  confinement  under 
sentence  cannot  be  computed  as  a  part  of  the  period  to  be  made  good 
under  this  article,  as  it  is  not  time  of  military  service.     Nor  can 
the  time  be   credited  where   the   sentence   is   remitted.      So,   time 
passed  while  awaiting  trial  cannot  be  computed.-'     The  usual  prac- 
tice under  the  weight  of  authorities  is  to  the  effect  that  the  punish- 
ment for  desertion  and  the  obligation  to  complete  the  contract — serve 
the  time  of  enlistment— are  separate  and  distinct,  and  that  the  restora- 
tion of  a  deserter  to  duty  without  a  trial  does  not  relieve  him  from 
his  obligation  to  complete  the  contract.-^     So,  where  the  accused  is 
acquitted  of  the  charge  of  desertion,  or  the  sentence  is  disapproved  he 
cannot  be  charged  with  the  amount  of  a  reward  for  his  arrest.-® 

=°  McClure  Dig.  Opinions,  §  1056.  =«  McClure    Dig.    Opinions,    §§    71. 

^McClure  Dig.  Opinions,  §  1093.  72. 

^Article  48.  =*  McClure  Dig.  Opinions,  §§  1074, 

^  McClure  Dig.  Opinions,  §§  64,  65.  1075. 

="  McClure  Dig.  Opinions,  §  66. 


§§  3488-3490.]      evidexce  ik  particular  cases. 


762 


§  3488.  Desertion — Enlistment  in  enemy's  army.— As  a  general 
rule  proof  of  the  enlistment  in  the  army  of  the  enemy  by  a  prisoner 
of  war  is  sufficient  to  sustain  a  charge  of  desertion.  Such  an  act  is 
only  Justifiable  when  done  as  a  resort  to  save  life,  or  to  escape  ex- 
treme suffering,  or  to  obtain  freedom.  When  such  enlistment  is 
proved,  to  overcome  its  force,  or  to  raise  a  sufficient  doubt,  the  ac- 
cused must  show  that  the  enlistment  was  for  one  or  more  of  the  pur- 
poses stated.  The  fact  that  the  accused  did  rejoin  his  original  com- 
mand has  been  held  to  be  sufficient  evidence  of  his  design  in  the  en- 
listment in  the  enemy's  army.^^ 

§  3489.  Desertion — Escape. — Proof  that  a  soldier  while  awaiting 
trial  or  sentence  escaped,  is  not  proof  of  desertion.  But  proof  of  an 
escape  with  other  circumstances  may  be  strong  proof  of  desertion. 
Thus,  proof  of  escape  followed  by  long  absence,  and  where  appre- 
hension and  forcible  return  follow,  is  held  to  raise  strong  presumptive 
evidence  of  a  sufficient  intent  to  constitute  the  crime  of  desertion. 
And  where  the  absence  is  brief  and  the  return  compulsory,  the  cir- 
cumstances attending  the  escape  may  be  such  as  to  justify  the  pre- 
sumption of  intentional  desertion.  An  escape  with  the  intention  of 
avoiding  the  confinement  and  quitting  the  service  is  desertion.  An 
escape  is  an  offense  for  which  punishment  may  be  inflicted  as  for 
"conduct  to  the  prejudice  of  good  order  and  military  discipline."" 

§  3490.  Desertion — Pay  and  forfeitures. — The  forfeiture  of  pay  as 
prescribed  by  the  army  regulations,-''-  can  only  be  imposed  upon  satis- 
factory proof  of  desertion,  and  conviction  by  a  court-martial  and  on 
approval  of  the  sentence;  if  the  sentence  be  disapproved  there  can 
be  no  forfeiture.  If  the  offender  is  restored  to  duty  without  trial 
by  competent  authority,  as  a  deserter,  this  has  been  held  sufficient  to 
warrant  a  forfeiture.  But  a  removal  of  the  charge  entered  by  mistake, 
in  orders  of  the  War  Department,  operates  to  relieve  the  accused  of 
all  forfeitures  charged  against  him.^^  But  it  has  been  held  by  the 
highest  authority  that  for  the  purpose  of  determining  the  right  of  the 
soldier  to  receive  pay  for  past  services,  the  desertion  need  not  be  es- 
tablished hy  the  sentence  of  a  court-martial.  If  the  fact  appears 
on  the  muster  rolls  it  is  sufficient  to  justify  a  withholding  of  the 

^McClure  Dig.  Opinions,  §  1095.  =^  McClure   Dig.   Opinions,   §   1062. 

^  McClure  Dig.  Opinions,  §  1057.         See  also.  §  1376  et  seq. 
"Article  129. 


763  DESERTION-.  [§§    0  491.   n492. 

money  due.^*  So,  the  fact  that  a  soldier  has  been  discliarged  without 
honor  on  account  of  desertion  is  sufficient  grounds  for  holding  the 
pay  due  at  the  time  he  was  charged  with  desertion.^"'  xV  deserter  is 
not  liable  to  any  penalty  or  forfeiture  except  as  provided  by  statute; 
he  is  never  subject  to  forfeiture  of  his  own  private  property;  nor 
does  he  forfeit  local  bounty  paid  him  upon  enlistment ;  nor  can  the 
money  found  on  the  person  of  a  deserter  be  taken.-'"' 

§  3491.  Desertion — Defense. — It  is  no  defense  to  a  charge  of  de- 
sertion that  the  accused,  at  the  time  of  the  enlistment  he  was  charged 
with  having  abandoned,  was  then  an  unapprehended  dcsertor.^^  Nor 
does  it  bar  such  a  charge  to  prove  that  the  accused  abandoned  the 
service  on  account  of  ill-treatment,  want  of  proper  food,  etc. ;  or  on 
account  of  homesickness;  or  that  the  accused,  a  foreigner,  was  or- 
dered to  report  at  his  home  for  military  duty.^^  But  any  reasonable 
excuse  may  be  given  in  evidence  for  the  purpose  of  extenuating  the 
offense  or  mitigating  the  punishment.  It  is  a  complete  defense  to 
such  a  charge  to  show  that  the  accused  had  previously  been  restored 
to  duty  without  trial,  by  competent  authority.^^ 

§  3492.  Desertion — Reward  for  arrest. — To  entitle  a  person  to 
the  reward  for  making  arrest  for  desertion  the  proof  must  show  that 
the  person  arrested  was  a  soldier.  But  the  official  making  the  arrest 
on  account  of  desertion  before  the  end  of  the  term  of  enlistment  is 
entitled  to  the  reward,  though  the  period  of  the  term  of  enlistment 
may  have  expired  before  the  arrest  was  actually  made.  The  same 
rule  applies  where  the  accused  may  be  under  sentence  of  dishonor- 
able discharge,  but  not  in  fact  discharged ;  so  "where  tlie  soldier,  ar- 
rested when  at  large  as  a  deserter,  has  been  sentenced  to  confinement 
(without  discharge)  and  has  escaped  tlierefrom.'*"  If  tliere  is  a  legal  de- 
fense to  the  charge  of  desertion  the  accused  is  not  liable  for  the  re- 
ward.^^  The  evidence  must  show  that  tlie  accused  was  in  fact  a  deserter 
before  the  reward  can  be  paid.  Proof  that  merely  shows  absence 
without  leave  is  not  sufficient.*^    The  arrest  must  be  legal,*'  and  the 

"United  States  v.  Landers,  92  U.         ■^McCliire  Dig.  Opinions,  §  1076. 
S.  77.  ^'  McClure  Dig.  Opinions,  §  1077. 

^McClure  Dig.  Opinions,  §  1063.  "McClure  Dig.  Opinions,    §    1078. 

^  McClure  Dig.  Opinions,  §  1064.  But  it  has  been  held  to  apply  to  a 

"  McClure  Dig.  Opinions,  §  1058.  soldier  charged  with  desertion.    Mc- 

**  McClure  Dig.  Opinions,  §  1059.  Clure  Dig.  Opinions.  §  1090. 
^McClure  Dig.  Opinions,  §  1060.  *^ McClure  Dig.  Opinions,  §  1080. 


§  3493.]  EVIDENCE  iisr  tarticulak  cases.  764 

surrender  manual  to  entitle  the  claimant  to  the  reward;  mere  in- 
formation is  not  sufficient.** 

§  3493.  Drunkenness  while  on  duty. — Officers  and  soldiers  are 
punished  for  being  intoxicated  on  duty.*^  So,  drunkenness  may  be 
an  offense  under  other  articles.**'  Wliile  it  is  an  offense  to  place  a 
soldier  on  duty  when  under  the  influence  of  intoxicating  liquors,  yet 
this  does  not  relieve  him  from  the  penalty,  as  the  article  provides 
for  the  punishment  if  the  soldier  is  found  drunk  on  duty.*^  There 
can  be  no  conviction  under  this  article  where  a  soldier  is  intoxicated 
at  the  time  of  drill,  or  duty,  but  is  too  drunk  either  for  the  drill  or 
duty.  The  charge  should  be  under  another  article.*^  But  an  officer 
reporting  in  person  upon  his  arrival  at  a  post,  in  a  state  of  intoxi- 
cation, is  held  to  be  drunk  on  duty  under  Article  38.  If  while  in- 
toxicated an  officer,  as  officer  of  the  day,  reports  to  the  post  com- 
mander for  orders,  after  he  has  been  detailed,  he  is  properly  charge- 
able under  this  article.*''  A  post  commander,  while  present  and  ex- 
ercising command  as  such  is  on  duty  at  all  times  within  the  meaning 
of  this  article.^"  The  same  rule  applies  to  a  medical  officer  where 
there  are  constantly  sick  persons  under  his  charge.^ ^  The  proof 
need  not  show  that  the  accused  was  utterly  incapacitated  by  reason 
of  the  intoxication;  it  is  sufficient  if  the  intoxication  is  such  as  to 
sensibly  impair  the  full  and  free  use  of  his  mental  or  physical  abilities. 
It  is  no  defense  to  such  a  charge  that  the  accused  was  able  to  dis- 
charge the  duty.^^  The  rule  is  that  any  intoxication  which  is  suffi- 
cient to  sensibly  impair  the  rational  and  full  exercise  of  the  mental 
and  physical  faculties  is  an  offense  under  this  article. ^^  And  it  is  not, 
ordinarily,  material  how  the  drunkenness  was  induced.^*  It  is  held  to 
be  proper  to  prove  drunkenness  as  going  to  the  question  of  the  grade 
of  the  offense,  and  especially  on  the  question  of  intent.^^  It  has 
been  held  that  intoxication  induced  by  morphine  or  other  drugs  pre- 
scribed by  a  medical  officer  may  constitute  a  sufficient  excuse  for  such 
breach  of  discipline.^^ 

"McClure  Dig.  Opinions,  §§  1082,  "  McClure  Dig.  Opinions,  §  45. 

1083.  '"'McClure  Dig.  Opinions,  §  47. 

^■'  Article  38.  "  McClure  Dig.  Opinions,  §  48. 

^«  Article  62.  ^^  McClure  Dig.  Opinions,  §  49. 

*' McClure     Dig.    Opinions,    §  43;  ^^  McClure  Dig.  Opinions,  §  50. 

2  Winthrop  Mil.  Law  &  Prec.  944.  "McChire  Dig.  Opinions,  §  51. 

« McClure     Dig.     Opinions,     §44;  "^  McClure  Dig.  Opinions,  §  1233. 

Article  62.  "'  McClure  Dig.  Opinions,  §  1234. 


7G5  DRUNKENNESS — EMBEZZLEMENT.       [§§    3494,    3495. 

§  3494.  Drunkenness — Proof. — The  rule  for  proving  drunkenness 
is  thus  stated  by  Col.  Winthrop :  "The  simplest  and  most  satis- 
factory evidence  of  drunkenness  will  be  the  statements  of  witnesses 
as  to  the  appearance,  condition,  manner,  language  or  acts  of  the  ac- 
cused, or  other  attendant  circumstances  from  which  a  state  of  intoxi- 
cation may  be  presumed.  But  as  drunkenness  is  to  a  great  extent  a 
matter  of  common  observation,  it  is  held  not  to  be  an  infringement  of 
the  rule  of  evidence — that  a  witness  (not  an  expert)  shall  not  be 
asked  or  allowed  to  give  his  opinion — for  witnesses,  when  interro- 
gated as  to  the  condition  of  the  accused,  to  state,  as  a  fact,  that  he 
was  drunk.  But  witnesses  so  stating,  should,  for  the  information  of 
the  court  and  the  reviewing  officer,  properly  be  required  to  state  also 
in  detail  the  observed  facts  upon  which  their  conclusion  is  based. 
Further,  military  witnesses,  when  of  the  proper  rank  and  experience 
to  enable  them  to  testify  as  quasi  experts,  may  be  asked  their  opinion 
as  to  whether  the  accused  was  or  was  not  capable,  under  the  circum- 
stances of  the  case,  of  properly  executing  the  duty  indicated  in  the 
specification."^'' 

§  3495.  Embezzlement. — The  ninth  subdivision  of  Article  60  pro- 
vides: "Who  steals,  embezzles,  knowingly  and  wilfully  misappro- 
priates, applies  to  his  own  use  or  benefit,  or  wrongfully  or  knowingly 
sells  or  disposes  of  any  ordnance,  arms,  equipments,  ammunition, 
clothing,  subsistence,  stores,  money,  or  other  property  of  tlie  T'nited 
States,  furnished  or  intended  for  the  military  service  thereof,  shall 
on  conviction  be  punished,"  etc.^'*  The  purpose  of  this  provision  is 
to  prevent  not  only  the  misappropriation  of  money,  but  also  of  all 
government  property  of  every  kind  intended  for  military  use.  It 
differs  from  larceny  in  that  the  articles  embezzled  are  in  the  posses- 
sion or  under  the  control  of  the  accused.  It  has  been  stated  as  a  rule, 
that  there  are  four  distinct  propositions  to  be  established  in  proving 
this  offense:  (1)  That  the  accused  was  the  agent  of  the  government 
or  was  intrusted  with  the  possession  or  custody  of  the  property. 
(2)  That  he  received  money  or  property  of  tlie  government.  (3) 
That  he  received  it  in  the  course  of  his  employment,  or  in  tlie  line  of 
his  duty.  (4)  That  he  converted  the  money  or  property  to  his  own 
■use  with  the  intent  to  steal  or  embezzle  the  samc.^"     An  officer  or 

"  2  Winthrop  Mil.  Law  &  Pr.  950.       Carter    v.     McClaughry,     105     Fed. 
"  Article  60,  sub.  9.  614. 

"Medley   ex   parte,    31    Cal.    108; 


§    3496.]  EVIDENCE    IN   PARTICULAR    CASES.  7G6 

soldier  in  the  army  is  held  to  be  always  in  what  is  termed  a  fiduciary 
relation  to  the  government,  and  unless  his  position  or  rank  is  specially 
controverted  it  will  not  be  necessary  to  prove  his  commission,  appoint- 
ment or  enlistment.  His  office,  rank  or  position  may  be  proved  by 
general  notoriety,  by  his  admissions,  or  by  the  orders  investing  him 
with  a  particular  character  or  duty.  The  fact  that  he  had  the  pos- 
session or  custody  of  the  property  may  be  proved  by  his  receipts,  or 
accounts,  or  by  the  testimony  of  the  officer  or  person  who  paid  the 
money  or  delivered  the  property.  "The  fact  of  the  fraudulent  con- 
version in  embezzlement  may  be  evidence  by  the  absconding  of  the 
accused  with  public  funds,  or  his  desertion  with  articles  of  public 
property  in  his  possession;  by  a  deliberate  falsification,  as  where  the 
party  denies  that  he  has  ever  received  the  money  or  property  which 
has  been  in  fact  committed  to  him;  by  the  rendering  of  a  false  re- 
turn, or  account  in  which  the  receipt  of  the  money  alleged  to  have 
been  embezzled,  is  omitted  to  be  acknowledged,  or  in  which  a  fictitious 
balance  is  made  to  appear,  or  which  is  otherwise  falsified  or  purposely 
mis-stated;  by  a  failure  altogether  to  render  an  account  required  by 
statute,  regulation  or  order  by  the  unauthorized  selling,  giving,  or 
otherwise  disposing  of  public  property  to  civilians  or  military  per- 
sons; by  the  paying  out  of  public  funds  to  persons  not  entitled  to 
receive  the  same;  by  a  neglect  to  pay  sums  justly  due  to  employes, 
contractors,  or  other  public  creditors,  out  of  money  furnished  for  the 
purpose,  or  to  make  any  other  required  disbursements;  by  a  neglect 
to  honor  proper  requisitions  for  military  stores,  or  a  dealing  of  them 
out  in  short  or  insufficient  quantities,  notwithstanding  that  ample 
supplies  have  been  provided  by  the  government ;  by  a  failure  to  turn 
over  to  a  successor,  on  being  relieved,  the  full  amount  of  public  prop- 
erty for  which  the  officer  is  legally  accountable ;  or  by  any  other  form 
of  non-performance  or  mal-performance  of  the  trust  devolved  upon 
the  party."^°  It  has  been  held  that  repeated  false  statements  of  the 
accused  in  regard  to  public  moneys  intrusted  to  him  and  for  which 
he  was  accountable,  may  be  evidence  of  guilt."  To  sustain  a  charge 
of  misappropriation  of  money  or  property  it  is  not  required  to  prove 
that  the  accused  appropriated  it  for  his  benefit  or  profit. ^- 

§  3496.     Embezzlement — Proof  and  presumption. — The  fact  of  em- 
bezzlement may  be  proved  by  showing  circumstances  from  which  the 

«» 2    Winthrop    Mil.    Law    &    Pr.         "  McClure   Dig.   Opinions,    §  120. 
1093,  1094;  G.  O.  3  of  1904.     See,  G.         ^=  McClure  Dig.  Opinions,  §  116. 
C.  M.  O.  34. 


767  EMBEZZLEMENT — PROOF    OF    ENLISTMENT.   '  [§    3497. 

guilt  may  be  presumed.  Thus,  it  has  been  held  that  guilt  may  be 
presumed  from  an  inability  on  the  part  of  an  ollicer  to  respond  to  the 
demands  of  an  inspector  general,  or  other  proper  officer  or  authority 
to  produce  or  account  for  the  money,  stores  or  property  for  which  he 
is  accountable  or  with  which  he  is  chargeable.  Tliis  presumption  of 
guilt  may  arise  where  it  is  made  to  appear  that  the  money  demanded 
was  exhibited  or  produced  by  borrowing  the  same  from  others  for  the 
time  being  to  take  the  place  of  the  public  moneys  which  have  been 
illegally  used  or  otherwise  misappropriated.  But  such  presumptive 
proof  may  be  overcome  by  showing  that  tlie  money  or  property  has 
been  stolen  or  captured  by  an  enemy,  or  taken  or  lost  by  some  power 
over  which  the  accused  had  no  control."^  So,  it  is  a  statutory  rule 
of  evidence  that  a  refusal  of  any  person  charged  with  the  custody  and 
disposition  of  public  moneys  to  pay  any  draft,  order  or  warrant  drawn 
upon  him  by  any  proper  officer  for  such  public  money  in  his  custody, 
or  the  refusal  to  transfer  or  disburse  any  sucli  money  promptly,  when 
required  by  the  proper  officer,  "shall  be  deemed  upon  the  trial  of  an 
indictment  against  such  person  for  embezzlement,  as  presumptive 
evidence,"  of  the  guilt  of  the  accused.  This  rule  applies  to  military 
officers.''* 

§  3497.  Enlistment — Proof. — The  Articles  of  War  do  not  define 
enlistment,  nor  state  of  what  it  shall  consist.  There  is  no  method 
provided  by  the  articles  for  making  proof  of  the  fact  by  documentary 
evidence.  The  only  written  evidence  is  the  oath  taken  and  subscribed 
by  the  person  enlisting.  Yet  the  article  which  provides  for  adminis- 
tering the  oath,  seems  to  contemplate  that  he  is  already  an  "enlisted 
.  man."*'^  The  rule  seems  to  be  that  proof  of  "any  act  or  acts  which 
indicate  an  undertaking,  on  the  part  of  a  person  legally  competent 
to  do  so,  to  render  military  service  to  the  United  States  for  the  term 
required  by  the  existing  law,  and  an  acceptance  of  such  service  on 
the  part  of  the  government,  may  ordinarily  be  regarded  as  legal  evi- 
dence of  a  contract  of  enlistment  between  the  parties,  and  as  equiva- 
lent to  a  formal  written  agreement  where  no  such  agreement  has  been 
had.'"'®  And  proof  of  the  identification  of  a  person  as  member  of  a 
company;  or  proof  of  facts  that  show  an  acquiescence  in  the  status  of 
a  soldier  is  sufficient.   Tims,  a  receipt  for  pay  as  a  soldier  may  estop  a 

»'2    Winthrop    MiL     Law    &    Pr.  •^'Article  2. 

1093-1095.  "■'■McClure   Dig.   Opinions,    §   1251, 

<"  United   States  R.   S..    §   5495;    2  n.    1 ;    2   Winthrop    Mil.   Law  &   Pr. 

Winthrop  Mil.  Law  &  Pr.  109S.  825,  829. 


§    3498.]  EVIDENCE    IN    PARTICULAR    CASES.  768 

party  from  denying  the  fact  on  the  charge  of  desertion;  so  where 
a  person  has  voluntarily  rendered  services  as  an  enlisted  man  and  as 
such  has  been  armed,  clothed,  fed  and  kept  by  the  government,  this  is 
sufficient  to  estop  him  from  denying  the  fact."  And  such  facts  are 
held  sufficient  without  other  proof  of  enlistment  or  oath.''®  So,  a 
return  to  his  regiment  and  entering  upon  his  duties  as  a  soldier  is 
sufficient  evidence  of  enlistment."^  So,  acquiescence  in  an  improper 
assignment  and  a  continuation  in  the  service  is  a  constructive  enlist- 
ment.'^'' It  is  no  defense  to  a  charge  of  desertion  to  plead  a  void  en- 
listment.'^^ 

§  3498.  Fraudulent  claims. — Article  60  deals  mainly  with  fraud- 
iilent  claims.  The  prosecutions  under  this  article  are  based  upon  the 
general  charge  for  violation  of  the  article,  and  upon  the  particular 
specifications  which  must  be  sufficient  to  bring  the  offense  within 
some  subdivision  of  the  article.  The  specifications  from  one  to  eight, 
inclusive,  deal  with  fraudulent  claims  against  the  government,  and 
the  fraudulent  management  and  accounting  of  property;  they  in- 
clude all  acts  of  a  single  person  in  making  or  presenting  false  claims, 
as  well  as  assisting  others  in  making  and  presenting  such  claims.  In 
charging  the  offense  it  is  not  necessary  to  allege  an  intent  to  defraud. 
Proof  of  the  act  of  misappropriation  has  been  held  to  be  sufficient; 
the  offense  is  complete  irrespective  of  the  motive.'^  But  it  has  been 
held  that  to  make  tlie  accounts  of  a  United  States  Marshal  fraudu- 
lent, guilty  knowledge  was  necessary.'^-^  Such  guilty  knowledge  should 
not  be  inferred  from  the  proof  of  negligence ;  the  proof  should  show 
that  the  accused  has  knowledge  of  such  circumstances  as  would  in- 
duce an  ordinarily  intelligent  and  prudent  person  to  believe  the  claim 
false.''*  A  person  ought  not  to  be  held  under  this  article  for  an  hon- 
est mistake,  but  when  he  seeks  to  support  his  claim  by  certificates  and 
affidavits  of  persons,  who,  to  the  knowledge  of  the  accused,  know 
nothing  of  the  fact  to  which  they  certify  or  depose,  it  has  been  held 
sufficient  to  establish  guilt  under  this  article."     It  is  a  reasonable 

^^McClure  Dig.  Opinions,  §§  1252,  '^  McClure  Dig.  Opinions,  §§  1257, 

1253.  1258,  1259. 

"^McClure  Dig.  Opinions,   §  1253;  "-Article  60;    McClure   Dig.  Opin- 

Lebanon  v.  Heath,  47  N.  H.  353,  359;  ions,  §  111. 

Anderson,    ex   parte,    16    Iowa   595,  "  United  States  v.  Russell,  19  Fed. 

599;  3  Greenleaf  Ev.,  §  483.  591. 

«>  McClure  Dig.  Opinions,  §  1254.  "United    States  v.    Shapleigh,    54 

™  McClure  Dig.  Opinions,  §§  1255,  Fed.  126. 

1256.  '"  United  States  v.  Route.  33  Fed. 


769  MUTINY.  [§  3499, 

rule  under  the  authorities  that  proof  of  circumstances  that  would 
properly  charge  the  accused  with  knowledge  that  the  claim  was 
false  or  fictitious,  is  sufficient.  The  subdivisions  include  a  wide  range 
of  false  claims,  such  as:  disbursements  to  government  employes; 
disbursements  in  the  secret  service;  for  horses  lost  in  battle;  for 
recruiting  expenses;  for  transportation  of  public  stores;  for  pay  of 
soldiers  on  falsified  muster  rolls ;  for  fuel  for  a  detachment ;  for  false 
vouchers  indicating  the  delivery  of  supplies  not  in  fact  furnished ; 
forging  the  name  of  a  commanding  officer  in  order  to  procure  pay- 
ment of  an  amount  not  in  fact  due ;  the  use  of  teams  and  tools  of  the 
government  in  work  for  private  citizens ;  loaning  the  property  of  the 
government  to  others.'^^ 

§  3499.  Mutiny — Proof. — Mutiny  or  sedition  is  punished  by  death 
or  otherwise  as  a  court-martial  may  direct."  The  ofPense  consists  of 
an  "unlawful  opposing  or  resisting  of  lawful  authority,  with  intent 
to  subvert  the  same,  or,  to  nullify  or  neutralize  it  for  the  time." 
Mutiny  is  clearly  distinguished  from  offenses  punishal^le  under  oth.er 
articles.  It  is  not  even  the  same  as  "mutinous  conduct,"  or  disre- 
spect toward  a  superior  officer,  or  the  offer  to  do  violence  to  a  superior 
officer.^®  The  offense  is  generally  a  concerted  proceeding,  but  it  is 
not  necessarily  a  joint  offense;  it  may  be  committed  by  a  single  per- 
son." Mere  disorders  on  the  part  of  one  or  more,  which  stop  short 
of  overt  acts  of  resistance;  or  acts  which  show  no  deliberate  intent 
to  overthrow  superior  authority,  do  not  amount  to  mutiny.  Dis- 
orderly conduct,  while  intoxicated,  accompanied  by  resistance  of 
superior  authority  is  not  mutiny.  Even  violence  to  an  officer,  in  the 
absence  of  proof  of  an  intention  to  overthrow  his  authority,  will  not 
establish  the  offense.  And  it  is  held  that  proof  of  insolent  language 
or  disorderly  behavior  is  not  sufficient  to  sustain  a  charge  of  mutiny.**" 

246;  United  States  v.  Jones,  32  Fed.  2  Winthrop  Mil.  Law  &  Pr.  894,  898, 

482.  899. 

'^McClure  Dig.   Opinions,   §§   109,  ^"United  States  v.  Smith,  3  Wash. 

110,  112;  2  Winthrop  Mil.  Law  &  Pr.  (U.  S.)   78,  27  Fed.  Cas.  No.  16344; 

1084-1092   and   notes;    G.   O.    98   of  United  States  v.  Kelly,  4  Wash.  (U. 

1905.  S.)    528.    26    Fed.    Cas.    No.    15516; 

"Article     22;     McClure     Dig.     of  United  States  v.  Hemmer,  4  Mason 

Opinions,    §    31;     2    Winthrop    Mil.  (U.  S.)  105,  26  Fed.  Cas.  No.  15345; 

Law  &  Pr.  892.  United   States  v.   Haines,    5   Mason 

'^McClure  Dig.  of  Opinions,  §  31;  (U.   S.)    272,   277,   26  Fed.   Cas.  No. 

2  Winthrop  Mil.  Law  &  Pr.  892.  15275;   United  States  v.  Thompson. 

'"McClure  Dig.  Opinions,  §  31;  1  Sumn.  (U.  S.)  168,  171,  28  Fed. 
Vol.  4  Elliott  Ev. — 49 


§§  3509,  3501.]   EVIDENCE  IN  PARTICULAR  CASES.  770 

The  refusal  to  obey  an  unlawful  order,  though  done  by  a  combination, 
will  not  sustain  a  charge  of  mutiny.  But  the  unlawfulness  of  the  act 
must  be  manifest  and  unquestionable  to  justify  the  resistance. ^^  So, 
it  has  been  held  that  resistance  to  an  attempted  enforcement  of  orders 
by  illegal  means  was  not  mutiny.*^ 

§  3500.  Mutiny — Intent. — It  is  generally  recognized  that  the  in- 
tent is  the  gist  of  the  crime  of  mutiny.  To  establish  the  offense  the 
intent  must  be  proved.  Proof  of  the  intent  may  be  made  in  different 
ways.  It  may  be  shown  by  proof  of  declarations,  or  it  may  be  in- 
ferred from  conduct.  Col.  Winthrop  says :  "The  intent  may  be 
openly  declared  in  words,  or  it  may  be  implied  from  act  or  acts  done ; 
as,  for  txample,  from  the  actual  subversion  or  suppression  of  the 
superior  authority,  from  an  assumption  of  the  command  whicli  be- 
longs to  the  superior,  a  rescue  or  an  attempt  to  rescue  a  prisoner, 
a  stacking  of  arms  and  a  refusal  to  march  or  do  duty,  taking  up  arms 
and  assuming  a  menacing  attitude ;  or  it  may  be  gathered  from  a 
variety  of  circumstances.  Xo  one  of  which  perhaps  would  of  itself 
alone  have  justified  the  inference.  But  the  fact  of  combination,  that 
the  opposition  or  resistance  is  the  proceeding  of  a  number  of  indi- 
viduals acting  together  apparently  with  a  common  purpose  is,  though 
not  conclusive,  the  most  significant,  and  the  most  usual  evidence  of 
the  existence  of  the  intent  in  question."®^  But  proof  of  intent  alone 
is  not  sufficient  to  establish  the  offense.  The  crime  is  not  made  out 
unless  the  proof  shows  some  act  or  acts  of  opposition  or  resistance. 
Proof  of  words  alone  cannot  convict  on  a  charge  of  mutiny.^* 

§  3501.  Mutiny — Suppression. — An  officer  or  soldier  who  is  pres- 
ent at  any  mutiny  or  sedition  and  does  not  attempt  to  suppress  it,  or 
who,  having  knowledge  of  such  mutiny,  fails  to  give  immediate  in- 

Cas.    No.    16492;    United    States    v.  United  States  v.  Sharp,   1  Pet.    (U. 

Forbes,  Crabbe  (U.  S.)   558,  25  Fed.  S.)  118,  127,  27  Fed.  Cas.  No.  16264; 

Cas.  No.  15129;  Tliompson  v.  Stacey  United   States  v.   Peterson,   1  Wood 

Clarke,  The,  54  Fed.  533;    14  Opin-  &  M,   (U.  S.)   305,  311,  27  Fed.  Cas. 

ion  Attorney-General  589.  No.  16037;   United  States  v.  Smith, 

s'McClure    Dig.    Opinions,     §  32;  3  Wash.    (U.  S.)    525,   27  Fed.   Cas. 

2    Winthrop    Mil.    Law   &    Pr.    897;  No.  16345. 

United  States  v.  Smith,  3  Wash.  (U.         ^2  Winthrop  Mil.  Law  &  Pr.  895, 

S.)    525,    27    Fed.    Cas.    No.    16345;  and  notes. 

United  States  v.  Borden,  1  Sprague         ^  2  Winthrop  Mil.  Law  &  Pr.  896, 

(U.  S.)  374,  24  Fed.  Cas.  No.  14625.  900,  and  notes. 

"2  Winthrop  Mil.  Law  &  Pr.  897; 


771       RELIEVING    THE   ENEMY — SLEEPING    ON    POST.       [§§    3502,    3503. 

formation  may  be  punished.*^  The  rule  of  proof  on  a  charge  under 
this  article  is  thus  stated  by  Col.  Winthrop :  "To  sustain  a  cliarge 
of  a  violation  of  the  article  under  consideration,  the  following  par- 
ticulars should  be  averred  and  proved:  the  existence  of  an  actual 
mutiny;  the  presence  of  the  accused  at  the  mutiny,  or  the  fact  of 
his  having  come  to  the  knowledge  that  one  was  intended ;  the  neglect 
or  failure  to  use  the  proper  efforts  to  suppress  or  the  neglect  or  failure 
to  give  the  information  (or  to  give  it  without  unreasonable  delay) 
to  the  commander."'^*' 

§  3502.  Relieving  the  enemy. — The  act  of  relieving  the  enemy 
in  any  manner  is  punished  by  death,  or  as  a  court-martial  may  di- 
rect.*^ This  offense  can  only  be  committed  in  time  of  war,  and  the 
degree  of  punishment  would  depend  naturally  on  the  heineousness  of 
the  offense.  The  act  is  not  recognized  as  treason,  yet  it  is  treason- 
able in  its  nature,  and  this  is  the  only  manner  for  punisliing  treasonable 
acts  by  court-martial.  The  offense  consists  in  furnisliing  or  supply- 
ing the  enemy  with  the  forbidden  articles ;  an  attempt  to  do  so  is  not 
an  offense  under  this  article.  Proof  of  giving  or  selling  the  for- 
bidden articles  is  sufficient;  the  question  of  need  on  the  part  of  the 
enemy  does  not  enter  into  the  consideration.  Xor  is  it  required  to 
show  that  the  articles  were  furnished  to  the  enemy's  government  or 
army.  The  offense  is  established  if  the  proof  shows  a  furnishing  of 
such  articles,  directly  or  indirectly  to  a  citizen,  or  to  citizens,  or  to 
a  memlier  or  members  of  the  military  establishment.  Ecliof  afforded 
to  individuals  is  relief  to  enemies  within  the  meaning  of  the  article. 
Furnishing  relief  to  prisoners  of  war  is  not  within  the  article.'*'* 
Civilians  are  subject  to  trial  before  court-martial  for  violations  of  tliis 
article.**" 

g  3503.  Sleeping  on  post. — A  sentinel  sleeping  upon  his  post,  or 
leaving  it  before  ho  is  regularly  relieved,  shall  suff'er  death,  or  such 
other  punishment  as  a  court-martial  may  direct."^  The  purpose  of 
this  article,  it  seems,  is  to  afford  the  security  in  camp  or  barracks  that 
is  required  in  time  of  peace  as  well  as  in  time  of  war.    And  it  is  of  the 

"•■Article  23.  S.)  635,  666;  Gooch  v.  United  States. 

»«2  Winthrop  Mil.  Law  &  Pr.  906.  15  Ct.  CI.   (U.  S.)   281,  287;    2  Win- 

"  Article  45.  throp  Mil.  Law  &  Pr.  975,  and  notes. 

'^^  Venice,    The.    2    Wall.     (U.    S.)  *»McClure  Dig.  Opinions,  §  58. 

258;  Alexander's  Cotton,  2  Wall.  (U.  '"Article  39. 
S.)    404;    Prize   Cases,   2   Black    (U. 


§    3503.]  EVIDENCE   IN    PARTICULAR   CASES.  772 

highest  importance  in  time  of  war ;  it  is  absolutely  essential  to  prevent 
surprise  and  capture.  In  making  proof  under  this  charge  is  first  to 
prove  that  the  accused  was  duly  detailed  to  post  or  sentinel  duty ;  this 
may  be  done  by  the  proper  officer.  This  is  then  followed  by  proof  that 
he  was  found  asleep  by  some  officer,  or  other  person  by  whom  he  was  so 
found.  It  may  be  difficult  to  prove  the  actual  fact  that  the  accused  was 
sleeping,  especially  in  the  night  time.  But  the  law  does  not  require  un- 
reasonable things,  hence,  proof  that  the  accused,  while  so  on  guard 
duty,  failed  to  challenge  the  person  approaching  the  post;  that  he 
was  found  lying  down,  sitting  or  reclining — in  some  position  in 
which  he  could  sleep ;  or  that  he  was  breathing  bard,  or  snoring,  was 
not  aroused  until  touched,  and  was  then  stupid ;  or  that  he  was  not 
holding  his  gun,  any  and  all  such  facts  and  circumstances  may  be 
given  in  evidence  as  tending  to  establisli  the  charge,  and  from  which 
the  fact  of  sleep  may  be  presumed.''^  It  is  no  defense  to  such  a 
charge  that  the  accused  was  irregularly  posted  as  a  sentinel;  or  that 
he  had  previously  been  overtaxed  by  extra  guard  duty;  or  that 
similar  offenses  had  been  overlooked.  But  in  such  cases  it  is  proper 
to  show  any  extenuating  circumstances,  or  any  facts  that  might  miti- 
gate the  punishment.''^ 

'^McClure     Dig.     Opinions,     §  55;         "2     Winthrop     Mil.    Law    &    Pr. 
2  Winthrop  Mil.  Law  &  Pr.  952.  953. 


INDEX. 

[References  are  to  Sections.^ 

A 
ABANDONMENT, 

salvage  for  recovery  of  derelict  property,  3357. 

ABDUCTION, 

age  of  consent,  previous  bad  character  not  a  defense,  when,  2756. 

age  of  female,  proof  of,  2752. 

belief  of  defendant  as  to  victim's  age,  2752. 

child  without  parents  or  legal  guardian,  proof  concerning,  2749. 

consent  of  parent  or  guardian,  absence  of,  2748. 

corroboration  of  principal  witness,  2757. 

defense,  bad  character  of  victim,  2756. 

definition  and  meaning  of,  2740. 

under  different  statutes,  2734,  2735,  2740. 
forcible  abduction,  what  constitutes,  2741. 
illicit  purpose  an  essential  element  of,  2745. 

fictitious  taking,  2742. 
intent,  sufficiency  of  proof,  2744. 
kidnapping,  law  concerning,  2735-2739. 
parent  not  required  actively  to  oppose,  2750. 
persuading  daughter  to  leave  parents,  2750. 
persuasion  or  inducement,  effect  of,  2742. 
previous  chaste  character,  proof  of,  2753. 

burden  of  proof,  2754. 

presumption  concerning,  2755. 
proof  of  detention  against  the  will,  2747. 
prostitution,  proof  of  purpose  essential,  2746. 
residence,  proof  to  establish  taking  from,  2749. 
subsequent  bad  character  of  victim  not  competent,  2753. 
taking  against  the  will  of  person  abducted,  2751. 
taking  away  or  detention,  proof  sufficient,  when,  2742,  2743. 
taking  from  home,  time  of  detention  immaterial,  when.  2748. 

parents  without  consent,  2750. 
unchastity  within  age  of  consent  as  a  defense,  2756. 

ABILITY, 

assault,  elements  of,  2822. 

striking  distance,  2826. 

what  constitutes  present  ability,  2823. 

773 


774  INDEX. 

[References  are  to  Sectio^is.l 
ABORTION, 

administering  drug,  meaning  of,  2763. 
advice  given  constitutes  offense,  when,  2763. 
assault  not  a  necessary  element  of,  2764. 
attempt  to  produce,  2760,  2761. 

on  woman  who  is  not  pregnant,  2761. 
common  law  offense  distinguished  from  statutory  offense,  2759. 
consent  of  woman,  effect  of,  2764. 
corroboration  of  prosecuting  witness,  2769. 
definition  and  meaning,  2758. 
dying  declarations  as  evidence,  2770. 
indictment  for  statutory  offense,  sufficiency  of,  2759. 
instruments  for  producing,  possession  proved,  2767. 
intent,  proof  of,  2760. 
means  used  to  produce,  proof  of,  2765. 
motive,  proof  of,  2762. 

necessity  for  producing,  burden  of  negative  proof,  2771. 
opportunities  for  committing,  proof  of,  2767. 
physician's  advice  as  to  necessity,  2771. 
pregnancy,  proof  of,  2766. 
seduction,  inference  of  guilt,  when,  3151. 
similar  acts,  proof  of  guilty  knowledge,  2768. 

ABSENCE  WITHOUT  LEAVE, 

book  entry  insufficient  evidence  of,  3478. 
court  martial,  proof  of,  3478. 

ACCESSORY, 

accomplice  distinguished  from,  2785. 
acquittal  of  principal,  effect  of,  2779. 
admissions  of  principal  as  evidence,  2770. 
after  the  fact,  what  constitutes,  2775. 

elements  of  offense,  2784. 

knowledge  of  crime,  2784. 

proof  of  offense,  2784. 
before  the  fact,  what  constitutes,  2774. 
classification  of,  2774. 
confession  of  principal  as  evidence,  2780. 
conviction  of  principal,  proof  by  record,  2778. 
corroboration  as  to  accomplice,  2786. 

of  testimony,  2787. 
crime  not  intended  committed  by  principal,  2783. 
definition  of,  2772. 
during  the  fact,  definition  of,  2776. 
gambling,  evidence  of,  3006. 
participation,  what  constitutes,  2782-2784. 
prevention  of  crime,  duty  of  citizen,  2776. 
principal  in  second  degree  distinguished  from,  2773. 


INDEX.  775 

[References  are  to  Sections.] 
ACCESSORY— Continued. 

proof  of  advising  or  participating,  2782. 
guilt,  what  necessary,  2781. 
principal's  guilt,  2777. 
receiving  stolen  goods,  effect  of,  3110. 
statutory  rules  as  to  liability,  2774. 
treason,  accessories  are  principals,  3159. 
witness,  corroboration  of,  2787. 

ACCIDENT, 

assault  and  battery  can  not  result  from,  2838. 
collision  at  sea,  inevitable  accident,  3369. 

rule  applied,  3368. 
homicide  excused  by  proof  of,  3042. 
law  and  fact,  questions  of,  3024. 

ACCOMPLICE, 

accessory  distinguished  from,  2785. 

bribery  proved  by  testimony  of,  2906. 

confession  admissible  in  prosecution  for  perjury,  3088. 

counterfeiting,  proof  by,  2958. 

corroboration  of  evidence  to  prove  guilt,  2786. 

definition  of,  2785. 

gambling,  evidence  of,  3006. 

incest,  corroboration  required,  when,  3168. 

receiving  stolen  goods,  corroboration  of  thief,  3120. 

robbery,  wounded  accomplice  captured,  3139. 

sodomy,  testimony  of,  3172a. 

ACCOUNTS, 

equity  cases,  examination  of  parties,  3190. 

production  before  master,  3190. 
reference  to  master,  3218-3236. 
report  of  master  in  chancery,  3227. 

ACCOUNTING, 

reference  to  master,  3219. 

ACQUITTAL, 

criminal  prosecution,  direction  by  court,  2732. 

defense  to  subsequent  prosecution,  2730. 

forgery,  proof  in  subsequent  prosecution  for  another  offense,  2990. 

perjury,  defense  to  prosecution  for,  3090. 

receiving  stolen  goods,  acquittal  a  defense,  when,  3119. 

ACTIONS, 

admiralty,  nature  of  proceedings.  3249. 
form  of  in  admiralty  courts,  3252. 


776  INDEX. 

^References  are  to  Sections.'] 
ADMINISTRATORS  AND  EXECUTORS, 

equity  cases,  competency  of  witnesses,  3178. 

ADMIRALTY, 

admissibility  of  evidence,  rules  concerning,  3252. 
admission  by  failure  to  deny  allegations,  3271. 

in  pleadings,  effect  of,  3271. 
amendments,  when  allowed,  3263. 

of  pleadings  not  allowed,  when,  3265,  3266. 
on  appeal,  when  permitted,  3267. 
time  of  making  and  effect  of,  3264. 
answers  to  interrogatories  as  evidence  for  party  making  them,  3281. 
appeal,  evidence  heard,  when,  3268. 
circumstances,  adaptation  of  proceetlings  to,  3254. 
collisions,  law  of,  3367-3395. 
communications  privileged,  when,  3290. 
contracts,  cancellation  of,  3248. 

of  seamen,  construction  of,  burden  of  proof,  3293. 
contributory  negligence  as  a  defense,  3392,  3393. 
constitution  of  the  United  States,  influence  of,  3245. 
damages  divided,  when,  3372,  3373. 

how  determined,  3271. 
discovery  and  inspection  of  documents,  3282-3291. 

illustrations  of  principles,  3287. 
documentary  evidence,  affidavit  as  to  possession  of,  3286. 
documents,  demand  for,  3283. 

discovery  of,  3282. 
equity  jurisdiction,  resemblance  to,  3250. 
foreign  laws,  proof  required,  when,  3258. 
further  proof  in  prize  cases,  3334-3336. 
great  lakes,  jurisdiction  upon,  3247. 
hearsay  testimony  admitted,  when,  3253. 
high  seas,  meaning  of,  3246. 
interrogatories  and  answers  as  evidence,  3280. 
before  pleading  allowed,  when,  3274. 
by  defendant,  3276. 
by  libelant,  3275. 

limitation  of  privilege  to  propound,  3278. 
materiality  of,  3279. 
office  of,  3277. 

practice  in  propounding,  3273. 
privilege  of  refusing  to  answer,  3276. 
time  of  delivery,  3274. 
to  obtain  evidence,  3273-3281. 
issues,  proof  must  come  within,  3259. 
judicial  notice  applicable,  when,  3257. 
concerning  rivers,  3257. 
of  geographical  facts,  3257. 


INDEX.  777 

[References  are  to  Sections.'\ 

ADMlRAhTY— Continued. 

judicial  notice,  of  maritime  regulations,  3258. 

of  natural  phenomena,  3257. 

of  the  tides,  3257. 
jurisdiction  generally,  theory  of,  3237. 

civil  law  determines,  3241. 

extent  of.  3237-3247. 

in  prize  cases,  3319,  3320. 

maritime  law  controls,  3242. 

must  appear  on  face  of  proceedings,  3243. 

nature  of,  3239. 

of  federal  district  court,  3247. 

United  States  rule,  3240. 
law,  general  nature  of,  3248. 
log  book  as  evidence,  3312-3317. 

motion  to  examine  witnesses  distinguished  from  amendment,  3269. 
nature  of  actions  in,  3249. 

negligence,  equitable  principles  applied  in  case  of.  3251. 
origin  and  history  of  jurisdiction,  3238. 
pleading,  amendment  of,  3262-3267. 

and  proof  in  courts  of,  3259-3272. 

as  evidence,  3270. 

control  admissibility  of  evidence,  3259. 

omissions  and  variations  in,  3262. 

parties  bound  by  allegations,  3260. 
practice,  law  of,  3248-3258. 
privilege,  waiver  of,  3291. 

privileged  documents,  character  established,  how,  3289. 
discovery  denied,  when,  3288,  3289. 
what  constitutes,  3290. 
prize  cases,  law  of,  3318-3347. 
production  of  documents  on  order  of  court,  3286. 
rules  of  evidence,  liberality  of,  3253. 
sailing  rules,  effect  of,  3256. 
salvage,  law  concerning,  3348-3366. 
special  damages,  pleading  concerning,  3272. 
statutes  apply,  when,  3255. 
statutes  of  United  States,  effect  of,  3245. 
United  States  courts,  jurisdiction  of,  3244. 
usage,  evidence  of,  3256. 
variance,  effect  of,  3261. 
wages  of  seamen,  3292-3311. 
burden  of  proof,  3295. 
witnesses  competent,  when,  3253. 


778  INDEX. 

[References  are  to  Sections.'i 
ADMISSIBILITY  OF  EVIDENCE, 

admiralty,  liberal  rules  of,  3253. 

rules  applied  in,  3252. 

pleadings  control,  3259,  3260. 
confession  of  murder  inadmissible,  when,  3034. 
declarations  of  co-conspirator  admissible,  when,  2939. 
defenses  in  criminal  prosecution,  2726. 
dying  declarations,  when  admissible,  3032,  3033. 
equity  cases,  issue  determines,  3214. 
homicide,  evidence  admissible  to  prove  guilt,  3044,  3045. 
log  book  as  evidence,  3313. 
master  in  chancery,  objections  before,  3224. 
perjury  to  secure  admission,  3080. 
pleadings  in  admiralty  courts  as  evidence,  3270. 

ADMISSION, 

accessory,  proof  of  principal's  guilt,  2780. 
arson,  competency  of  evidence,  2815. 

previous  attempts  to  destroy  property,  2812. 
bigamy,  proof  of  first  marriage,  2863. 
bribery,  evidence  of,  2907. 

conduct  indicating  conscious  guilt,  2723-2725. 
consent  to  larceny  of  property  disproved,  how,  3054. 
counterfeiting,  proof  of,  2957. 
embezzlement,  entries  in  defendant's  books,  2968. 
equity  cases,  agreement  of  parties,  3194. 

answer  overcome  by,  3198. 

co-defendant's  answer  as  evidence,  3206. 

effect  as  evidence,  3193. 

plea  as  evidence,  3208. 

weight  and  sufficiency  of  evidence,  3216. 
false  pretense  shown  by,  2980,  2983. 

forgery,  statements  concerning  other  forged  instrument,  2994. 
infant  not  bound  by  statement  in  pleadings,  3207. 
interrogatories  and  answers  as  evidence,  3280,  3281. 
log  book  as  evidence  against  persons  keeping  it,  3315. 
marriage  proved  in  criminal  prosecution,  2802. 
perjury  established  by  proof  of,  3088. 
pleadings,  failure  to  deny  allegation,  3197. 

in  admiralty,  amendment  of,  3264. 

effect  as  admissions,  3271. 
rape,  impeachment  of  prosecutrix  by,  3103. 

proof  by,  3103. 
seduction,  chastity  of  prosecutrix  disproved  by,  3145. 

corroboration  by  proof  of,  3152. 

evidence  of,  3150. 


IXDEX.  779 

[References  are  to  Sections.'] 
ADULTERATION  OF  FOOD, 

analysis  disputed  by  defendant,  3165. 

knowledge  of  defendant,  proof  not  required,  when,  3165. 

purpose  of  sale,  proof  not  required,  when,  3165. 

ADULTERATION  OF  LIQUOR, 

knowledge,  proof  not  required,  when,  3165. 

ADULTERY, 

acts  of  familiarity  or  adultery  at  other  times  admissible,  2796. 

admissions  as  proof  of  marriage,  2802. 

circumstances  affording  inference  of,  2791-2794. 

cohabitation  or  living  in,  2795. 

continuous  act,  proof  of,  2797. 

criminal  offense,  law  concerning,  2788-2805. 

divorce  invalid,  no  defense,  2805. 

facts  held  sufficient  to  raise  inference,  2794. 

invalidity  of  marriage  as  a  defense,  2804. 

knowledge  of  invalidity,  2804. 
marriage,  proof  essential,  2798. 

proof  made,  how,  2799-2803. 

proof  by  witnesses  at  celebration  of,  2801. 

record  proof  of,  2800. 
nature  of  proof  required,  2790. 
place,  proof  not  limited  as  to,  2796. 
prima  facie  proof  of  marriage,  2803. 
reasonable  doubt,  rule  in  prosecutions  for,  2789. 
single  act,  rule  as  to,  2797. 

statutory  provisions  are  local  and  special,  2788. 
time,  proof  not  limited  as  to,  2796. 

ADVERTISEMENT, 

false  pretense  by  means  of,  2978. 

AFFIDAVIT, 

documentary  evidence,  discovery  in  admiralty,  3286. 
equity  cases,  weight  and  sufficiency  of  evidence,  3216. 
master  in  chancery,  evidence  before,  3188. 
perjury,  best  evidence  of  making,  3083. 

by  taking  oath,  3070. 
privileged  documents,  character  established,  how,  3289. 
signature  by  mark,  perjury,  when,  3071. 

AFFIRMATION, 

perjury  constitutes,  when,  3070. 

AGE, 

abduction,  previous  bad  character  not  a  defense,  when,  2756. 

proof  concerning  age  of  victim.  2752. 
burden  of  proof  in  criminal  prosecution,  2706. 


780  INDEX. 

[References  are  to  Sections.l 

AGE — Continued. 

defendant's  belief,  effect  in  prosecution  for  kidnapping,  2739. 

kidnapping,  proof  in  establishing  crime,  2739. 

minor  gambling,  burden  of  defense  as  to  good  faith,  3010. 

rape,  age  of  prosecutrix,  3095. 

seduction,  burden  of  proof,  3142. 

AGE  OF  CONSENT, 

abduction,  unchastity  of  female  as  a  defense,  2756. 
burden  of  proof  in  prosecution  for  rape,  3093. 

corroboration  of  prosecutrix,  3105. 

ignorance  of  defendant  no  defense,  3108. 

AGENCY, 

embezzlement,  elements  of  offense,  2972. 

AGENT, 

interi-ogatories  concerning  acts  of,  duty  to  answer,  3278. 

AGREEMENT, 

equity  cases,  admissions  in,  3194. 

AIDING  THE  ENEMY, 

court-martial  for  offense  of,  3502. 

ALIBI, 

burden  of  proof,  2727. 
burglary,  defense  to  prosecution  for,  2919. 
homicide,  defense  to  prosecution  for,  3042. 
Instructions  cautioning  jury  against  defense  of,  2733. 
larceny,  defense  to  prosecution  for,  3059. 
reasonable  doubt  raised  by  proof  of,  2727. 
robbery,  identity  established,  how,  3133. 
proof  of,  3140. 

ALIEN, 

prize  cases,  competency  of  witnesses,  3330. 

ALLEGIANCE, 

treason,  evidence  of,  3163. 

ALMANAC, 

burglary,  time  of  breaking  proved,  how,  2914. 

ALTERATION  OF  INSTRUMENT, 

possession  of  chemicals  as  evidence,  2995. 

AMBIGUITY, 

contracts  of  seamen,  construction  of,  3293. 


INDEX.  781 

[References  are  to  Sections.'] 
AMENDMENT, 

appeal  in  admiralty  courts,  amendment  permitted,  when,  3267. 
pleadings  in  admiralty  courts,  32G2-3267. 

AMICUS  CURI^, 

courts  martial,  counsel  for  prisoner,  3432. 

ANCHORED  VESSEL, 

collision  with,  burden  of  proof,  3379.    • 

ANIMALS, 

cruelty  to  fowls  punishable,  when,  3167. 
cruelty,  what  necessary  to  conviction  for,  3167. 
larceny,  rule  at  common  law,  3052. 
malicious  injury  to  trespassing  animals.  3172. 

ANSWER, 

equity  cases,  answer  not  responsive,  when,  3202. 
co-defendant's  answer  not  evidence,  3206. 
falsity  established  in  part,  3204. 
limitations  on  use  as  evidence,  3199. 
reply  not  filed,  3200. 
responsive  answers,  3201. 
test  of  responsiveness,  3203. 
unsworn  answer,  defendant  can  not  use  as  evidence,  3199. 

APPEAL, 

amendments  permitted,  when,  3267. 
evidence  on  appeal  of  admiralty  case,  3268. 
verdict  set  aside  by  court  of  equity,  effect  of,  3177. 

APPROVAL, 

court  martial  must  obtain  from  commander,  3456. 

ARGUMENT, 

court  martial,  opening  statement  before  trial,  3446. 

ARMY, 

arrest  before  calling  court  martial,  3428. 

of  officers,  3429. 
courts  martial,  3396-3502. 
general  court  martial,  who  appoints,  3402. 

ARREST, 

close  arrest  of  officer,  3429. 

confinement  of  soldier,  what  constitutes,  3428. 

counsel,  right  of  accused,  3431. 

notice  of  charge  when  officer  is  arrested,  3430. 

court  martial,  arrest  before  calling,  3428. 

homicide  in  attempting  questions  of  law  and  fact,  3024. 

kidnapping,  what  constitutes,  2735-2739. 


782  INDEX. 

n 

■  [References  are  to  Sections.'] 

ARREST — Continued. 

report  to  commanding  army  officer,  3429. 
reward  for  deserter,  when  due,  3492. 
robbery  of  prisoner  by  police,  3140. 

•  ARSON, 

admissions  of  defendant  as  evidence,  2815. 

burden  of  proof  concerning,  2808. 

court  martial,  sentence  in  time  of  war,  3457. 

definition  of,  2806. 

defrauding  insurance  company,  occupancy  shown,  2814. 

house  defined  within  meaning  of  law,  2806. 

insurance,  proof  concerning  motive,  2810. 

intent  implied  from  act,  3464. 

shown  how,  2807. 
malice  as  an  element  of,  2806. 
map  of  premises  as  evidence,  2814. 
motive  for  committing,  proof  of  other  crime,  2813. 

evidence  of,  2810. 
occupancy,  proof  concerning,  2814. 
other  fires  and  crimes,  proof  of,  2813. 
ownership,  proof  concerning,  2808,  2814. 

testimony  irrelevant,  when,  2814. 
preparations  to  commit,  evidence  of,  2816. 
presumptions  concerning,  2807. 
previous  attempts,  proof  of,  2812. 
questions  of  law  and  fact,  2809. 
rules  of  criminal  law  govern,  2816. 
subsequent  crimes  proved,  when,  2813. 
threats  admissible,  when,  2811. 
venue,  proof  of,  2808. 

ARTICLES  OF  WAR, 

courts  martial  in  United  States  created  by,  3398. 

ASSAULT, 

abortion  does  not  involve,  2764. 

assault  and  battery  distinguished  from,  2835. 

attempt  or  offer  to  strike,  effect  of,  2824. 

civil  liability  for  drawing  unloaded  gun,  2833. 

definition  of,  2817. 

drawing  fire-arms,  when  constitutes,  2829. 

unloaded  gun,  burden  of  proof,  2834. 
fear  induced  by  threats,  effect  of,  2820. 
intent  inferred  from  act,  2819. 

need  not  be  shown,  when,  2821. 

not  an  essential  element,  when,  2820. 

proof  of,  2818-2821. 
menace  distinguished  from,  2827. 


INDEX.  783 

[References  are  to  Secti07is.] 

ASSAULT — Continued. 

pointing  fire-arms,  what  essential,  2830. 
present  ability  an  essential  element,  2822. 
present  ability,  meaning  of,  2823. 

gun  not  loaded,  2830-2833. 

striking  distance,  2826. 
proof  under  indictment  for  riot,  3128. 
self-defense,  proof  showing  preparations  for,  2828. 
striking  at  another,  proof  of,  2825. 
threat  upon  condition  distinguished  from,  2827. 
unloaded  gun,  civil  and  criminal  liability  distinguished,  2833. 
violence  intended,  proof  of,  2828. 

ASSAULT  AND  BATTERY, 

bodily  harm,  what  constitutes,  2837. 

defense  of  property,  right  of,  2852. 

definition  of,  2835. 

distinguished  from  simple  assault,  2835. 

Greenleafs  definition,  283G. 

indirect  assault  and  battery,  what  constitutes,  2837. 

injury  to  feelings  as  an  element,  2842. 

intent  as  an  element  of  criminal  offense,  2838. 

intent,  inference  from  circumstances,  2841. 

intent  not  an  essential  element,  when,  2839. 

intent,  presumption  of,  2840. 

intent  to  injure  another  person,  2838. 

parent  and  child,  burden  of  proof,  2845. 

punishment  excessive,  when,  2846. 
parent's  authority  over  child,  2843. 
parent  striking  child,  presumption  concerning.  2845. 
prosecution  for  riot  barred  by  conviction  for,  3128. 
retaking  property  by  force  not  justified,  2856,  2857. 
riotous  commission  of,  3127. 
self-defense,  law  of,  2847-2855. 

burden  of  proof,  2855. 

degree  of  force  permitted,  2853,  2854. 
striking  person  directly  not  essential,  2837. 
teacher  inflicting  punishment  on  pupil,  2844. 

ASSAULT  WITH  INTENT, 

presumption  of  intent,  proof  of  act  raises,  when,  3014. 
rape,  circumstantial  evidence,  3104. 

ATTEMPT, 

abortion,  attempt  to  produce,  2760,  2761. 
assault,  what  constitutes,  2817. 

by  attempting  to  strike,  2824. 
conspiracy  to  commit  crime  does  not  amount  to,  2923. 


784  IXDEX. 

[References  are  to  Sections.'] 

ATTORNEY  AND  CLIENT, 

communications  privileged  in  admiralty  proceedings,  3290. 

AUTOPSY, 

murder  by  poisoning  proved  without,  3046. 


B 

BAILMENT, 

larceny  disproved  by  showing,  3050. 

of  bailed  article  by  owner,  3053. 

BANK  NOTE, 

forgery  of,  parol  evidence  of  bank's  existence,  2997. 

BARRATRY, 

reputation  as  evidence  of,  3063. 

BATTALION. 

court  martial  appointed,  when,  3403. 

BAY, 

high  seas,  distinguished  from,  3246. 

BEST  EVIDENCE, 

parol  and  secondary  evidence  in  equity,  3215. 

perjury,  affidavit  proved  how,  3083. 

record  of  court  required,  when,  3C83. 
BETTING, 

gambling,  law  concerning,  2999-3011. 

BIGAMY, 

absence  of  husband  or  wife,  burden  of  proof,  2868. 

effect  of,  2868. 
admissions  as  proof  of  first  marriage,  2863. 
cohabitation  as  evidence  of  marriage,  2862,  2863. 
criminal  prosecution,  law  of,  2858-2874. 
definition  of  crime  of,  2859. 
divorce  of  first  husband  or  wife  as  a  defense,  2873. 

burden  of  proof,  2873. 
first  marriage,  method  of  proof,  2862. 
good  faith  of  marriage  no  defense,  2871,  2872. 
jurisdiction,  proof  of,  2860. 
living  husband  or  wife,  distinction  in  statutes,  2869. 

proof  of,  2866. 
polygamy.  United  States  law  concerning,  2870. 
presumption  as  to  life  of  husband  or  wife,  2867. 

as  to  second  marriage,  2865. 
reasonable  doubt  of  first  marriage  must  be  excluded,  2863. 


INDEX.  785 

[References  are  to  Sections.'i 

BIGAMY — Continued. 

second  marriage,  proof  of,  2867. 
validity  of  first  marriage,  2861. 
void  marriage,  effect  of,  2861. 

second  marriage,  effect  of,  2864. 
witnesses,  first  and  second  wives  as,  2874. 

BILLS  OF  LADING, 

prize  cases,  effect  as  evidence,  3337. 

BLACKMAIL, 

criminal  offense  of,  2875-2888. 

prosecution,  intent  in  beginning,  2884. 
debt,  collection  by  threats,  2886. 
definitions  of,  2876,  2877. 
extortion  and  bribery  distinguished,  2879. 

constitutes,  when,  2878. 
knowledge  of  threatened  person's  guilt  no  defense,  2881. 
nature  of  crime,  2875. 
threatening  letter  to  aid  or  explain,  2881. 
threat  must  be  proved,  2880. 

of  prosecution  by  third  person,  2883. 

of  prosecution  to  extort  money,  2882. 
truth  of  criminal  charge  immaterial,  2887. 

BLASPHEMY, 

character  of  language  used,  effect  of,  2893. 

common  law  definition  of,  2890. 

definition  under  statutes,  2892. 

law  concerning,  2888-2896. 

others  offended  by  language,  proof  of,  2894. 

profane  use  of  words  essential  to  offense,  2893. 

profanity  as  a  nuisance,  2895. 

statutes  against,  foundation  of,  2889. 

words  used,  what  sufficient,  2896. 

BLOCKADE, 

intent  to  pass,  proof  of,  3324. 

presumption  concerning  in  prize  cases,  3324. 

BLOODHOUND, 

criminal  tracked  by,  circumstantial  evidence,  2715. 

BLOOD  STAINS, 

homicide,  evidence  concerning,  3029,  3044. 
testimony  concerning,  when  admissible,  3027. 

BOOKS, 

embezzlement  proved  by  defendant's  books,  2972. 
nuisance  by  sale  of  obscene  books,  3068. 

Vol.  4  Elliott  Ev. — 60 


786  INDEX. 

[References  are  to  Sections.] 
BOOK  ENTRIES. 

embezzlement  proved  by,  2968. 

BOYCOTT, 

labor  combination  as  unlawful  conspiracy,  2949-2951. 

BRIBERY, 

accomplice  as  a  witness,  2906. 

admissions  and  confessions  as  evidence,  2907. 

burden  of  proof,  2898. 

conspiracy,  acts  and  declarations  of  others  admissible,  when,  2906. 

decoy,  testimony  of,  2906. 

defenses  to  prosecution  for,  2908. 

definition  of,  2897. 

distinguished  from  extortion,  2879. 

documentary  evidence,  introduction  of,  2903. 

financial  dealings  of  parties,  proof  of,  2904. 

identity  of  offender,  2900. 

intent  of  person  in  accepting  bribe,  2901. 

law  concerning,  2897-2908. 

law  and  fact,  questions  of,  2899. 

other  similar  offenses,  proof  of,  2902. 

proof  of  offense,  extent  of,  2905. 

BRIGADE. 

general  court  martial  organized  in,  3402. 

BUGGERY, 

law  of  sodomy,  3172a. 

BULLET, 

admissibility  in  evidence,  3028. 

BURDEN  OF  PROOF, 

abandonment  of  vessel,  seaman's  wages,  3294. 

abduction,  previous  chaste  character  of  victim,  2754. 

abortion,  negative  averment  as  to  necessity  for,  2771. 

alibi,  burden  of  proving,  2727. 

arson,  2808. 

assault  and  battery  by  parent  on  child.  2845. 

bigamy,  absence  of  husband  or  wife,  2868. 

divorce  of  first  husband  or  wife,  2873. 
bribery,  prosecution  for,  2898. 
burglary,  prosecution  for,  2910. 
change  of  voyage,  desertion  by  seaman,  3298. 
chastity  of  abducted  female,  2754,  2755. 
claimant  in  prize  cases  has  burden,  when,  3327,  3328. 
collisions  at  sea,  3367. 

burden  as  to  violation  of  statute,  3375. 

vessel  having  wind  free,  3382. 

in  fog,  liability  for,  3387. 


INDEX.  787 

[References  are  to  Sections.^ 

BURDEN  OF  PROOF— Continued. 

collisions  at  sea,  vessel  required  to  keep  out  of  the  way,  3377. 

with  anchored  vessel,  3379. 
counterfeiting,  offense  established  how,  2953. 
contributory  fault  of  plaintiff.  3371,  3372. 
court  martial,  rule  in,  3473. 

shifting  of  burden  not  known,  3474. 
criminal  prosecution,  affirmative  defense,  2706. 

extent  of  burden,  2706. 
drawing  unloaded  gun,  proof  concerning,  2834. 
embezzlement,  prosecution  for,  2965. 
equity  cases,  answer  disproved,  how,  3198. 

what  must  be  proved,  3211. 
false  pretense,  how  shown,  2980. 
forgery,  how  established,  2987. 
former  jeopardy,  how  established,  2731. 
insanity  as  a  defense  to  criminal  prosecution,  2728. 
jurisdiction  of  courts  martial,  3425. 
lookout  absent,  collision  resulting,  3381. 
homicide,  degree  of  offense,  3019. 
malice  shown,  how,  3021. 
self-defense  and  insanity,  3022. 
murder,  death  by  criminal  agency,  3023. 
necessity,  negative  proof  concerning,  2771. 
negative  proof  in  court  martial,  3473. 
neutral  waters,  prize  cases,  3322. 
perjury,  how  established,  3071. 

surprise,  inadvertence  or  mistake  as  matters  of  defense,  3071. 
presumption  of  innocence  of  murder,  3013. 
prize  cases,  illustrations  of,  3329. 
joint  capture  of  vessel,  3345. 
what  evidence  required,  3326. 
provisions  insufficient,  seaman's  wages,  3311. 
rape,  proof  of,  3093. 
receiving  stolen  goods,  3112. 

elements  of  crime,  3113. 
riot,  offense  established,  how,  3123. 

sale  of  intoxicating  liquor  to  minor,  parent's  consent,  3171. 
salvage,  agreement  to  pay,  3365. 

claim  established,  how,  3353. 
seduction,  crime  of,  3142. 

reformation  of  prosecutrix,  3147. 
self-defense  in  prosecution  for  assault  and  battery,  2855. 
statutory  crimes,  evidence  in,  2703. 
treason,  how  established,  3155. 
vessel  adrift,  proof  concerning,  3383. 
wages  of  seamen,  action  for,  3295. 
contracts  of  hiring,  3293. 


788  INDEX. 

[References  are  to  Sections.] 
BURGLARY, 

breaking  and  entering,  evidence  of,  2912. 
building,  character  of,  2913. 
burden  of  proof  and  presumptions,  2910. 
court  martial,  proof  of,  3479. 

sentence  in  time  of  war,  3457. 
defenses  to  prosecution  for,  2919. 
definition  and  elements  of,  2909. 
identity  of  prisoner,  proof  of,  2916. 
intent,  evidence  to  establish,  2915. 

proof  required,  3464. 
law  concerning,  2909-2919. 
law  and  fact,  questions  of,  2911. 
other  crimes,  proof  of,  2917. 
ownership  of  building,  proof  of,  2913. 
physical  examination  to  prove  identity,  2916. 
possession  of  stolen  property  as  evidence,  2918. 

explanation  of,  2919. 
possession  of  tools  as  evidence,  2916. 
time  of  breaking,  evidence  of,  2914. 


C 
CAMP. 

court  martial,  jurisdiction  over  persons  in,  3421. 

CAPTURE, 

admiralty  jurisdiction,  extent  of,  3240. 
joint  capture,  common  enterprise,  3347. 

presumption  concerning,  3344. 

sight  and  signal  distance,  3346. 
prize  cases,  admiralty  jurisdiction,  3318-3347. 

CARD  PLAYING, 

gambling,  law  concerning,  2999-3011. 

CARGO. 

burden  of  proof  on  claimant  when,  3327,  3328. 
prize  cases,  presumptions  concerning,  3323. 
salvage,  law  concerning,  3348-3366. 

CARRIER  BY  WATER, 

collisions,  law  of,  3367-3395. 

CHALLENGE, 

courts  martial,  right  of,  3434. 

CHANCERY, 

equity  proceedings  generally.  3174-3217. 


INDEX.  789 

[References  are  to  Sections.'i 
CHAPLAIN, 

judge  advocate  may  be,  3410. 

CHARACTER, 

abduction,  burden  of  proof  concerning,  2754. 

defense  of  bad  character  admissible,  2756. 

proof  concerning,  2753. 
associates  of  accused,  proof  of  character  of,  2722. 
bribery,  defense  by  proof  of  good  character,  2908. 
circumstantial  evidence  of  crime  adduced  from,  2712. 
counterfeiting,  defense  to  prosecution  for,  2961. 
court  martial,  evidence  concerning,  3475. 
criminal  prosecution,  evidence  of  character  of  others,  2722. 

proof  of  character,  2721. 
homicide,  evidence  of  self-defense,  3041. 
larceny,  evidence  admissible  when,  3059. 
murder,  character  of  deceased  as  evidence,  3038. 

trial,  character  of  accused  as  evidence,  3039. 
rape,  evidence  to  disprove  charge,  3108. 

proof  of  character  of  prosecutrix,  3101. 
receiving  stolen  goods,  3116. 
seduction,  admissions  as  evidence,  3150. 

defense  to  criminal  prosecution,  3153. 

time  referred  to,  3145. 

CHARIVARI, 

riot  constitutes  when,  3122. 

CHASTITY, 

abduction,  proof  made,  how,  2753,  2754. 
presumption  in  prosecution  for  seduction,  3143. 
rape,  consent  shown  how,  3096. 

evidence  to  disprove  charge,  3108. 

on  unchaste  woman,  3108. 

reputation  of  prosecutrix  as  evidence.  3101. 
seduction,  admissions  of  prosecutrix  as  evidence,  3145. 

burden  of  proof.  3142. 

proof  of,  3145. 

specific  acts  of  immorality  proved  where,  3145. 

CHEATING, 

false  pretenses  distinguished  from,  2973. 

CHECK, 

forgery,  proof  concerning,  2990. 

CHILD, 

abduction,  definition  of,  2740. 
rape,  exhibition  of  child  to  jury,  3106. 
testimony  sufficient  when,  3102. 


790  INDEX. 

[References  are  to  8ections.'\ 
CHILD  STEALING, 

intent  as  an  element  of  offense,  2738. 

CHRISTIANITY, 

blasphemy,  law  forbidding,  2889-2896. 

CHOSE  IN  ACTION, 

larceny,  rule  at  common  law,  3052. 

CIRCUMSTANTIAL  EVIDENCE, 

abortion,  necessity  disproved  by,  2771. 
adultery  proved  by  circumstances,  2791-2794. 
arson,  threats  made  by  stranger,  2811. 
assault  and  battery,  inference  of  intent,  2841. 
assault,  intent  to  injure,  2818. 
blockade  running  established  by,  3324. 
burglary,  breaking  and  entering  shown  by,  2912. 

time  of  breaking  and  entering,  2914. 
carrying  concealed  weapon,  proof  by  circumstances,  3166. 
conduct  and  relations  of  accused,  2712. 
indicating  conscious  guilt,  2723. 
consent  to  larceny  of  property  disproved  how,  3054. 
conspiracy,  proof  by,  2936. 
corpus  delicti  established  by,  2708. 
corroboration  in  abduction  supplied  by,  2757. 

in  seduction,  3152. 
cruelty  to  animals,  malice  proved  by,  3167. 
disorderly  house  proved  by,  3065. 
elements  and  classification  of,  2710,  2711. 
embezzlement,  proof  by,  2969,  2972. 
equity  cases,  answer  overcome  by,  3198. 

weight  and  sufficiency  of,  3216. 
exclusion  of  every   reasonable  hypothesis  of   innocence  necessary, 

2709. 
false  pretense,  deceit  shown  how,  2980. 
falsity  of  oath,  proof  of,  3077. 
flight  or  refusal  to  flee  inadmissible  when,  2724. 
forgery,  fraudulent  intent  proved  by,  2990. 

sufficiency  of  proof,  2995. 
gambling,  proof  by  means  of,  3004. 
homicide,  prosecution  for,  3043. 

proved  by,  3046. 
identity  of  accused,  proof  of,  3133. 

of  burglar  established  by,  2916. 
intent  established  how,  2718. 
implied  when,  2716. 
to  kill,  presumption  raised  by,  3014. 
intoxicating  liquor,  sale  of,  3170. 


INDEX.  791 

[References  are  to  Sections.^ 
CIRCUMSTANTIAL  EYIBKNCE— Continued. 

larceny,  felonious  intent  shown  how,  3055. 

possession  of  stolen  goods  as  evidence,  3059. 
motive  for  crime  not  necessarily  established  by,  2719. 
murder,  questions  of  law  and  fact,  3024. 

res  gestae,  3029. 
perjury,  commission  of  established  how,  3087. 
proof  connecting  third  person  equally  with  circumstances,  2726. 
public  indecency  proved  by,  3068. 
rape,  proof  of,  3098,  3104. 

penetration  proved  by,  3092. 
reasonable  doubt  of  any  link  in  chain  of  circumstances,  2713. 

what  essential  to  overcome,  2707. 
receiving  stolen  goods,  character  evidence  admissible  when,  3116. 

knowledge  of  theft,  3114. 
riot,  unlawful  intent  proved  by,  3123. 
robbery,  proof  of,  3138. 

corroboration  of,  3139. 

intent  shown  how,  3132. 

possession  of  stolen  property,  3136. 
seduction,  proof  of,  3151. 

law  and  fact,  3144. 

promise  of  marriage,  3148. 
tracking  criminal  with  bloodhounds,  2715. 
venue  proved  by,  2714. 

CIVIL  LAW, 

admiralty  jurisdiction,  influence  of,  3241. 

CLOTHING, 

admissibility  in  evidence,  3028. 
rape,  clothing  as  evidence,  3106. 

COHABITATION, 

adultery,  criminal  offense  of,  2795. 

bigamy,  second  marriage  not  followed  by,  2864. 

polygamy.  United  States  law  forbidding,  2870. 

COLLATERAL  ATTACK, 

courts  martial,  decisions  not  subject  to  review  by  civil  courts,  3426. 

COLLATERAL  EVIDENCE. 

court  martial,  admissibility  of,  3465. 
perjury  in  giving,  3079,  3080. 

COLLISION  AT  SEA. 

anchored  vessel,  burden  of  proof.  3379. 
burden  of  proof,  3367. 
burden  on  vessel  having  wind  free,  3382. 
comparative  fault,  division  of  damages,  3373. 


792  INDEX. 

[References  are  to  Sections.} 
COLLISION  AT  SBA— Continued. 

concurrent  fault  of  two  vessels  injuring  third,  3374. 
contributory  negligence  bars  recovery  when,  3393. 

disregarded  when,  3382. 

does  not  prevent  recovery,  3392. 

of  complainant,  burden  of  proof,  3371,  3372. 

recovery  in  case  of,  3378. 
damages  divided,  what  constitutes,  3394. 
division  of  damages,  both  vessels  at  fault,  3372. 
fog,  burden  of  proof  as  to  collision  in,  3387. 

moderate  speed  defined,  3388,  3389. 

precautions  to  be  used  in,  3385-3390. 

prima  facie  case  of  negligent  collision,  3387. 

speed  of  vessel  in,  3386-3390. 

speed  is  evidence  of  negligence,  3390. 

speed  of  vessel  moderate,  rule  concerning,  3388. 
inevitable  accident,  effect  of,  3369. 
inscrutable  fault,  rule  of,  3368. 
lookout  absent,  burden  of  proof,  3381. 

not  provided,  effect  of,  3380. 
mutual  negligence,  effect  of,  3391. 

negligence  in  navigation,  admiralty  rule  concerning,  3251. 
presumption  of  fault,  3370. 

against  complaining  vessel,  3371. 
prima  facie  case  when  lookout  is  absent,  3380. 
speed  not  conclusive  evidence  of  negligence,  3390. 
statutory  duty  violated,  burden  of  proof,  3375. 
steamers,  burden  of  proof  imposed  upon,  3377,  3378. 
towing  vessel,  liability  for  collision,  3384. 
usage,  proof  of,  3395. 
vessel  adrift,  burden  of  proof,  3383. 
violating  marine  laws,  justification  for,  3376. 

COMMANDER, 

court  martial,  approval  of  finding  required.  3456. 
prosecution  in  court  martial,  3435,  3436. 

COMMISSION, 

evidence  in  equity,  United  States  rules,  3181. 

COMMON  LAW, 

admiralty  courts  not  affected  when,  3255. 
blasphemy  an  offense  under,  2890,  2891. 
conspiracy  as  a  public  offense,  definition  of,  2927,  2928. 
kidnapping,  modification  of  rule  of,  2737. 

COMPARATIVE  NEGLIGENCE, 

damages,  division  in  admiralty  courts,  3373. 
mutual  negligence,  admiralty  rule,  3391. 


INDEX.  793 

[References  are  to  Sections.'] 

COMPETENCY  OF  EVIDENCE, 

log  book,  when  competent,  3314. 

COMPETENCY  OF  WITNESSES, 

bigamy,  first  and  second  wives  as  witnesses,  2874. 

equity  cases,  defendant  not  proved  incompetent  when,  3205. 

rules  governing,  3178. 
forgery,  who  may  testify,  2989. 
prize  cases,  who  are  competent,  3330. 

COMPLAINT, 

interrogatories  in  admiralty  court,  3275. 
rape,  corroboration  of  prosecutrix,  3102. 

evidence  admissible  when,  3098,  3099. 

CONCEALMENT, 

consciousness  of  guilt  indicated  by,  2724. 

CONCLUSIVE  EVIDENCE, 

equity  cases,  answer  of  defendant  conclusive  when,  3198. 

fog,  speed  of  vessel  as  proof  of  negligence,  3390. 

log  book  is  when,  3315. 

receiving  stolen  goods,  proof  of,  3111. 

CONCUBINAGE, 

abduction  for  purpose  of,  2740-2757. 
proof  sufficient  when,  2745. 

CONDUCT, 

circumstantial  evidence  of  crime  adduced  from,  2712. 
consciousness  of  guilt  indicated  by,  2723. 

CONFESSION, 

accessory,  proof  of  principal's  guilt,  2780. 

accomplice  in  perjury,  confession  admissible  when,  3088. 

arson,  admissibility  of  evidence,  2815. 

blasphemy  not  sufficiently  proved  by,  2894. 

bribery,  evidence  of,  2907. 

conspiracy  not  proved  by  subsequent  confession,  2943. 

court  martial,  corpus  delicti  must  be  proved,  3463. 

embezzlement,  proof  by,  2972. 

forgery,  admissions  as  to  other  forged  instruments,  2995. 

admissibility  of  confession,  2995. 
incest  proved  by,  3168. 
murder,  corpus  delicti  proved  how,  3034. 

evidence  in  prosecution  for,  3034. 

instructions  on  admitting  confession,  3034. 
perjury  established  by  proof  of,  3088. 
receiving  stolen  goods,  corroboration  of,  3120. 

thief's  confession  not  competent,  3113. 


794  ixDEX. 

[References  are  to  Sections.1 
CONFESSION— Continued. 

rape,  age  of  prosecutrix  not  proved  by,  3103. 

proof  by,  3103. 
silence  under  charge  of  crime,  3034. 
sodomy,  proof  by,  3172a. 
treason  proved  by,  3157. 

CONSENT, 

abduction,  age  of  vicitm,  2752. 

proof  of  taking  victim  without,  2751. 
abortion,  effect  of  woman's  consent,  2764. 
criminal  offense  not  excused  by,  2726. 
detention  of  woman  against  her  will,  proof  of,  2747. 
rape,  absence  of  consent  proved  how,  3092. 

character  and  reputation  of  prosecutrix  admissible,  3101. 

circumstantial  evidence,  3104. 

defense  to  prosecution,  3096. 

expert  evidence  of  physician,  3107. 

presumption  concerning,  3094. 
reference  to  master  without,  3218. 

CONSPIRACY, 

abortion,  attempt  to  produce,  2764. 

accessory,  proof  of  guilt,  2781. 

attempt  to  commit  crimes  distinguished  from,  2923. 

bribery,  acts  and  declarations  of  conspirators,  2906. 

confession  of  co-conspirator  not  admissible  when,  2943. 

counterfeiting,  declarations  of  co-conspirators  as  evidence,  2957. 

declarations  after  conspiracy  terminated,  admissibility  of,  2944. 

of  co-conspirator,  admissibility,  2939. 

of  co-conspirator,  limitations  of  rule,  2943. 

of  co-conspirator,  preliminary  proof,  2940. 

of  others  as  evidence,  2939-2941. 
definition  of,  2921. 

under  various  statutes,  2927,  2928. 
direct  evidence  no*-  essential,  2938. 

distinction  between  civil  and  criminal  actions  for,  2920. 
false  pretense,  declarations  of  co-conspirator,  2983. 
formal  agreement  need  not  be  proved,  2938. 
indictment  not  naming  conspirators,  declarations  admissible  when, 

2945. 
labor  combinations,  law  concerning,  2949-2951. 
law  concerning  prosecutions  for,  2920-2951. 
murder  trial,  character  of  co-defendants  not  admissible,  3039. 
overt  acts  merged  when,  2948. 

proof  not  required  when,  2946,  2947. 
pleading  in  prosecutions  for,  2924-2926. 
prima  facie  case,  declarations  of  co-conspirator,  2941,  2942. 


IXDEX. 

[References  are  to  Sections.'] 

CONSPIRACY— Continued. 

private  injury,  combination  to  inflict,  2933. 
proof,  wtiat  sufficient,  2936. 

order  of  making,  2934. 
public  injury,  combination  to  inflict,  2931. 

New  Hampshire  rule,  2932. 
receiving  stolen  goods,  proof  of,  3120. 
robbery,  evidence  of  other  crimes  admissible  when,  3137. 
statutory  offense  of,  2922. 
sufficiency  of  proof,  2937. 
treason,  levying  war  defined,  3158. 

what  constitutes,  3154. 
two  or  more  conspirators  essential,  2935. 
unlawful  act,  meaning  of,  2929,  2930. 

CONSTITUTIONAL  LAW, 

admiralty  jurisdiction  in  United  States,  3245. 
courts  martial  antedate  constitution,  3398. 
criminal  evidence,  safeguards  and  privileges,  2705. 

prosecution,  province  of  jury,  2732. 
cruelty  to  animals,  statutes  prohibiting,  3167. 
intoxicating  liquor,  prima  facie  sale  of,  3170. 
jury  not  called  in  equity  cases,  3175. 
lottery,  laws  forbidding,  3011. 
reference  to  master  forbidden  by,  3218. 
statutory  crimes,  evidence  of,  2703. 
treason,  evidence  necessary,  3154. 

CONSTRUCTION  OF  CONTRACT, 

wages  of  seamen,  rules  applied  to,  3293. 

CONTEMPT  OF  COURT, 

court  martial,  offense  against,  3481. 

CONTINUANCE, 

court  martial,  when  granted  in,  3444. 
perjury  in  affidavit  to  obtain,  3080. 

CONTRACT, 

admiralty  courts,  control  over,  3248. 
dissolution  of  seaman's  contract,  3294. 
salvage,  burden  of  proof  concerning.  3365. 

claim,  effect  upon.  3361. 

determined  by,  3361,  3362. 
seaman,  employment  of,  3292. 

CONTRADICTION. 

corroboration  of  accomplice  by  failure  to  contradict,  2786. 


795 


796  INDEX, 

[References  are  to  Sections.'] 

CONTRIBUTORY  NEGLIGENCE, 

admiralty  courts,  apportionment  of  damages,  3251, 
admiralty  rule  bars  recovery  when,  3393. 

recovery  not  prevented,  3392. 
collisions  at  sea,  defense  to  action,  3367. 

disregard  of  negligence,  3382. 

recovery  in  case  of,  3378. 
damages  divided  in  admiralty,  what  constitutes,  3394. 
salvage  denied  to  rescuers  when,  3366. 
violation  of  statute,  effect  of,  3392. 

CONVERSION, 

larceny  committed  by,  3050. 

COPY, 

forgery,  secondary  evidence  of  forged  instrument,  2993. 

COPYRIGHT, 

infringement,  reference  to  master,  3219. 

CORONER, 

testimony  of  witness  before,  admissibility  upon  trial,  3037. 

CORPORATION, 

legal  existence  of  insurance  company  immaterial  in  arson,  2816, 

CORPSE, 

admissibility  of  portions  in  evidence,  3028. 

CORPUS  DELICTI, 

arson,  what  constitutes,  2806. 
circumstantial  evidence  as  proof  of,  3046. 

to  prove,  2708. 
confession  does  not  excuse  proof  of,  3463. 
court  martial,  proof  required,  3463. 
external  objects  and  appearances  as  proof,  2711. 
murder,  burden  of  proof,  3023. 

proof  of  offense,  3034. 
perjury,  documentary  evidence  to  prove,  3089. 
rape,  confession  not  sufficient  proof  of,  3103. 

CORROBORATION, 

abduction,  proof  required  in,  2757. 
abortion,  extent  of  corroboration  required,  2769. 
accessory  as  a  witness,  necessity  for,  2787. 
accomplice,  proof  of  guilt,  2786. 
admiralty  courts,  rule  concerning,  3250. 
circumstantial  evidence  of  robbery,  3139. 
counterfeiting,  testimony  of  accomplice,  2958. 
equity  cases,  answer  overcome  when,  3198. 


INDEX.  797 

[References  are  to  Sections.'] 
CORROBORATION— Continued. 

perjury,  circumstances  sufficient  when,  3087,  3089. 

proof  necessary,  3089. 

reputation  of  corroborating  witness,  3089. 
rape,  testimony  of  prosecutrix,  3102. 
reasonable  doubt,  rule  as  to  accomplice,  2786. 
receiving  stolen  goods,  confession  as  evidence,  3120. 

thief  as  an  accomplice,  3120. 
seduction,  what  required,  3152. 
sodomy,  accomplice  as  a  witness,  3172a. 
treason,  confession  of  defendant,  3157. 

CORRUPTION, 

bribery,  law  concerning,  2897-2908. 

COSTS, 

equity  cases,  taking  testimony,  3181. 
reference  to  master,  failure  to  prosecute,  3222. 

COUNSEL, 

courts  martial  refusing  aid  of,  3427. 
right  of  accused,  3431. 
status  and  privileges  of  counsel,  3433. 

COUNTERFEITING. 

accomplices,  admissions  and  testimony  of,  2958. 

admissions  and  declarations  as  evidence,  2957. 

bank  notes,  existence  of  bank,  2956. 

coin  or  bank  bills,  proof  concerning,  2953. 

conspiracy,  declarations  of  co-conspirators  as  evidence,  2957. 

defenses  to  prosecution  for,  2961. 

definition  of  crime,  2952. 

essential  elements  of  offense,  proof  necessary,  2953. 

expert  evidence,  admissibility  of,  2959. 

explanation  of  possession,  2961. 

false  pretense  distinguished  from,  2974. 

instruments,  possession  proved  when,  2954,  2955. 

intent  to  defraud  inferred  when,  2953,  2954. 

knowledge,  proof  of,  3954. 

law  concerning  crime  of,  2952-2961. 

possession  explained  by  accused  when,  2955. 

with  criminal  intent  as  an  offense,  2955. 
production  of  counterfeit  at  trial,  2960. 
similar  offenses,  proof  of,  2954. 

COURTS, 

admiralty  courts  as  courts  of  equity,  3250. 
nature  of,  3248. 


798  INDEX. 

[References  are  to  Sections.} 
COURT  AND  JURY, 

province  of  in  criminal  prosecution,  2732. 

COURT  MARTIAL, 

absence  without  leave,  proof  of,  3478. 

acts  of  court  binding,  3419. 

admissibility  of  evidence,  how  determined,  3408. 

agency  in  commission  of  offense  "must  be  established,  3462. 

ancient  organization  of,  3396. 

answer  of  accused,  3442. 

approval  of  finding,  who  makes,  3456. 

argument  by  judge  advocate,  3412. 

arrest  before  court  is  convened,  3428. 

close  and  open  confinement,  3429. 
burden  of  proof  in  proceedings  before,  3473. 

never  shifts,  3474. 
burglary,  proof  of,  3479. 
capital  cases  not  tried  when,  3405. 
■    challenge  to  members  of  court,  3434. 
character  evidence,  3475. 
charge,  authority  of  judge  advocate,  3411. 

what  constitutes,  3439. 
commander  as  prosecutor,  3435,  3436. 
conduct  unbecoming  an  officer,  3484. 

to  prejudice  of  good  order,  3481-3483. 

to  prejudice  of  good  order,  offenses  enumerated,  3482,  3483. 
continuance  denied,  effect  of,  3444. 

granted  when,  3444. 
corps,  court  appointed  in,  3403. 
corpus  delicti,  proof  required,  3463. 
counsel,  privilege  of  having,  3431,  3432. 

status  and  privileges  of,  3433. 
criminating  questions,  judge  advocate's  objection,  3413. 
cross-examination  of  officer,  3471. 

permitted  when,  3449. 
death  sentence  pronounced  how,  3452. 
degree  of  proof  required,  3470. 
depositions,  taking  and  use  of,  3477. 
desertion,  acquittal  of,  3486. 

defense  to  charge  of,  3491. 

enlistment  with  enemy,  3488. 

forfeiture  of  pay,  3490. 

penalty  for,  3487. 

proof  of,  3485. 

reward  for  arrest,  3492. 
decision  reached  how,  3452. 
disapproval  nullifies  sentence,  3458. 
discipline  violated,  proof  of,  3480. 


INDEX. 

[References  are  to  Sections.'i 

COURT  MARTIAL — Continued. 

dismissal  of  officer,  president  must  approve,  3457. 
documentary  evidence  in,  3465. 
drunkenness  on  duty,  3493. 

proof  made  liow,  3494. 
embezzlement,  presumption  concerning,  3496. 

proof  of,  3495. 
engineer  corps,  appointment  in,  3403. 
enlistment,  proof  of,  3468. 

proof  of,  3497. 
escape  from  guard  house  not  desertion  when,  3488. 
evidence,  relevancy  of,  3465. 
rules  of,  3459-3477. 
of  officers,  3471. 
in  particular  cases,  3478-3503. 
heard  in  open  court,  3445. 
heard  in  hospital  when,  3445. 
finding,  approval  of,  3456. 

approval  by  the  president,  3457. 
exceptions  and  substitutions,  3455. 
must  follow  evidence,  3453. 
of  court  and  judgment,  3452-3458. 
on  charge  and  specification,  3454. 
pleadings  amended  to  conform  to,  3455. 
forfeiture  imposed  by,  3405. 
fraudulent  claims,  presentation  of,  3497. 
garrison  court  martial,  3405. 
general  courts  martial,  organization  of,  3402. 

officer,  sentence  must  be  approved  when,  3457. 
orders,  proof  of,  3466. 
Greenleaf's  rules  of  evidence,  3461. 
history  in  the  United  States,  3398. 

of  English  courts,  3397. 
identity  of  accused,  proof  of,  3462. 
impeachment  of  witnesses,  3476. 
innocence  presumed  in  prosecutions  before,  3461. 
intent,  proof  essential,  3464. 
judge  advocate,  appointment  of,  3409. 
duty  to  accused  person,  3413. 
duties  to  court,  3412. 
powers  of,  3411. 
who  may  be  appointed,  3410. 
judges  preside  in,  3401. 
judgments  not  subject  to  review  by  civil  courts,  3426. 

reviewed  by  civil  courts  when.  3427. 
judicial  notice  of  general  orders,  3466. 


799 


800  INDEX. 

[References  are  to  Sections.'} 
COURT  MARTlALr-Continued. 

jurisdiction  of  court,  3415-3427. 

general  discussion  of,  3415. 
jurisdiction  in  criminal  cases,  3417. 

burden  of  proof,  3425. 

exceeded,  authority  of  civil  courts,  3427. 

is  not  territorial,  3416. 

over  civilians,  3421. 

limitations  of,  3423. 
aiding  enemies,  3422. 

over  persons  aiding  the  enemy,  3422. 
with  the  army,  3421. 

to  determine  whether  accused  is  a  soldier,  3420. 
law  administered  by,  3396-3502. 
limited  jurisdiction  of,  3401. 
leading  questions,  objections  to,  3413. 
martial  law  distinguished,  3400. 
military  law,  discussion  of,  3399. 

occupation,  jurisdiction  of,  3423. 
misconduct  in  connection  with,  3481. 
muster  rolls,  proof  of,  3466. 
mutiny,  intent  an  element  of  offense,  3500. 

proof  made,  how,  3499. 

suppression  of,  3500. 
nature  and  organization,  3401-3418. 
notice  to  officer  of  charge  against  him,  3430. 
number  of  officers  composing  coui't,  3404. 
oath  administered  by  presiding  officer,  3408. 
officer  intoxicated,  punishment  for,  3493. 

misconduct  in  general,  3482. 
opening  statement  before  trial,  3446. 
opinion  evidence  admissible,  when,  3472. 
order  of  introducing  testimony,  3449. 
organization  and  constitution  of,  3401,  3402. 
origin  and  history,  3396-3400. 
penalty,  how  determined,  3452. 
pleading,  certainty  of,  3438. 

charge  and  specification  distinguished,  3439. 

in  prosecutions  before,  3437-3442. 
statement  of  charge,  3440. 
time  and  place  of  offense,  3440. 
plea  of  guilty,  judge  advocate's  duty  after,  3414. 
practice,  matters  of,  3428-3436. 
president's  approval  of  sentence,  how  shown,  3457. 
presiding  officer  of,  3407. 
functions  of,  3408. 
presumptions  of  legality  not  indulged,  3424. 


INDEX,  801 


[References  are  to  Sections.'] 

COURT  MARTIAL— Continued. 

prosecutor,  judge  advocate  is,  3410. 
qualification  of  members,  3414. 
questions  by  members  of  court,  3451. 
rank  of  officers  composing  court,  3404. 
reasonable  doubt  must  be  removed,  3461. 

effect  of,  3470. 
record  as  to  penalty,  3452. 

of  evidence  and  objections  taken  there,  3450. 
authenticated,  how,  3409. 

of  previous  trial,  admissibility  of,  3467. 
regimental  courts  martial,  3403. 

and  garrison  courts,  jurisdiction  of,  3418. 
relieving  the  enemy  in  time  of  war,  3502. 
report  of  arrest  when  made,  3430. 
senior  officer  presides,  when,  3407. 
sessions  of  court,  3443. 
signal  corps,  appointment  for,  3403. 
sleeping  on  post  of  duty,  3503. 
specification  in  pleadings,  3439. 
statutes  binding  upon,  3419. 
summary  court  martial  allowed,  when,  3406. 

approval  of  decisions,  3406. 

jurisdiction  of,  3418. 
swearing  witnesses,  how  conducted,  3447. 
telegrams,  proof  of,  3469. 
tie  vote,  effect  of,  3452. 
trial  of  case,  3443-3451. 

venue  not  defined  by  territorial  limits,  3416. 
witnesses,  separation  of,  3448. 

COURT  OF  EQUITY, 

equity  proceedings  generally,  3174-3217. 

CREDIBILITY  OF  WITNESSES, 

court  martial  determines,  3453. 
equity  cases,  United  States  rule,  3178. 
forgery,  jury  may  convict,  when,  2997. 
instructions  cautioning  jury  concerning,  2733. 
perjury,  answers  on  cross-examination,  3079. 

by  false  testimony  concerning  credibility,  3080. 
rape,  complaint  by  prosecutrix,  3099,  3100. 

corroboration  of  pi-osecutrix,  3102. 

prosecutrix  under  age  of  consent,  3095. 

witness  under  age  of  discretion,  3094. 

Vol.  4  Elliott  Ev.  -51 


802  INDEX. 

[References  are  to  Sections.'] 
CRIME, 

abduction,  law  of,  2734-2757. 

abortion,  law  of,  2758-2771. 

accessory,  what  constitutes,  2772-2787. 

adulteration  of  food  or  drink,  3165. 

alibi,  proof  of,  2727. 

arson,  law  concerning,  2806-2816. 

assault  and  battery,  law  concerning,  2835-2857. 

assault,  law  concerning,  2817-2834. 

assisting  or  concealing  criminal,  2775. 

bigamy,  law  concerning,  2858-2874. 

blackmail,  law  concerning,  2875-2888. 

blasphemy,  law  concerning,  2889-2896, 

bribery,  law  concerning,  2897-2908. 

burden  of  proof  to  establish,  2706. 

of  affirmative  defense,  2706. 
burglary,  law  concerning,  2909-2919, 
character  of  accused,  proof  of,  2721. 

of  others,  proof  of,  2722. 
circumstantial  evidence,  conduct  of  accused,  2712, 

elements  and  classification,  2710. 

external  objects  and  appearances,  2711. 

relation  of  accused  to  facts  of  crime,  2712. 

requisites  of,  2709. 
conduct  indicating  conscious  guilt,  2723. 
conspiracy,  law  concerning,  2920-2951. 
constitutional  safeguards  and  privileges,  2705. 
counterfeiting,  law  concerning,  2952-2961. 
court  martial,  prosecution  before,  3480. 
criminal  capacity,  evidence  of,  2704. 
cruelty  to  animals,  3167. 
defendant  as  a  witness,  privilege  of,  2705. 
defenses  to  prosecution  for,  2726-2731. 
definition  and  general  principles,  2702. 
depositions  in  prosecutions  for,  2705. 
embezzlement,  law  concerning,  2962-2972. 
evidence  of  other  crimes  admissible,  when,  2720. 
false  pretenses,  2973-2984. 
forgery,  law  concerning,  2985-2998. 
former  jeopardy  as  a  defense,  2730. 
gambling,  law  concerning,  2999-3011. 
general  principles  and  rules,  2702-2733. 
homicide,  law  of,  3012-3046. 
identity  of  accused,  proof  of,  2706. 

ignorance  of  law  is  no  defense  to  criminal  prosecution,  2726. 
incest,  law  of,  3168. 
insanity  as  a  defense,  2728. 
instructions  cautioning  the  jury  against  defenses,  2733. 


INDEX,  803 

[References  are  to  Sections.'] 

CRIME — Continued. 

intoxication  as  a  defense,  2729. 

larceny,  law  concerning.  3047-3059. 

libel,  law  concerning,  3169. 

liquor  law  violations,  3170. 

malicious  mischief,  proof  of,  3172. 

malicious  trespass,  proof  of,  3172. 

motive  need  not  be  proved,  when,  2719. 

names,  proof  of,  2714. 

nuisance,  law  concerning,  3060-3069. 

obstructing  highway,  3066. 

other  offenses  proved  to  establish  intent,  2720. 

perjury,  law  of,  3070-3091. 

pollution  of  waters,  3067. 

province  of  court  and  jury,  2732. 

public  indecency,  3068. 

rape,  law  of,  3092-3109. 

receiving  stolen  goods,  3110-3121. 

riots  and  unlawful  assembles,  law  concerning.  3122-3128. 

robbery,  law  concerning,  3129,  3140. 

seduction,  law  of,  3141-3153. 

sodomy,  law  of,  3172a. 

statutory  crimes,  caution  as  to  proof  of,  3173. 

evidence  of,  2703. 
substance  of  charge,  proof  sufficient,  2714. 
weapons,  carrying  concealed,  3166. 

CRIMINAL  CAPACITY, 

proof  essential,  when,  2704. 

CRIMINAL  INTENT, 

circumstantial  and  presumptive  evidence  of,  2718. 
evidence  to  establish,  2717,  2718. 
inference  from  nature  of  act  done,  2716. 
proof  essential  to  conviction,  2716. 

CRIMINAL  LAW, 

courts  martial,  jurisdiction  of,  3417. 

CRIMINAL  PRACTICE, 

answer  in  court  martial,  3442. 

CROSS-COMPLAINT, 

equity  cases,  cross-bill  and  answer  as  evidence,  3209. 

CROSS-EXAMINATION, 

court  martial,  when  permitted,  3449. 
officer  subject  to  at  court  martial,  3471. 
perjury,  materiality  of  answers,  3079. 
rape,  complaint  by  prosecutrix,  3099,  3100. 
seduction,  subjects  for,  3145. 


804  INDEX. 

[References  are  to  Sections.} 
CRUELTY  TO  ANIMALS, 

evidence  necessary  to  conviction,  3167. 
malicious  mischief  distinguistied  from,  3167. 
ownership  must  be  proved,  when,  3167. 
parol  evidence  competent,  when.  3167. 

CUSTOM, 

usage  as  law  of  the  sea,  3395. 


D 

DAMAGES, 

admiralty  courts,  pleading  special  damages,  3272. 
admiralty  rule  for  division  of,  what  constitutes,  3394. 
amendment  of  pleadings  in  admiralty,  3264. 
assessment  on  default  in  courts  of  admiralty,  3271. 
both  vessels  at  fault,  division  of  damages,  3372. 
concurrent  fault  of  two  vessels  injuring  third,  3374. 
comparative  fault,  division  of,  3373. 
contributory  negligence,  admiralty  rule,  3392. 
perjury  in  testimony  concerning,  3080. 

DANGER, 

salvage  for  rescuing  vessel  from,  3355,  3356. 

DEATH, 

court  martial  inflicts,  when,  3452. 

sentence,  approval  by  president,  3457. 
murder,  burden  of  proof  concerning,  3023. 
presumption  as  to  cause  of,  3020. 

DECEPTION, 

seduction  accomplished  by,  3141. 

DECLARATIONS, 

abduction,  consent  of  parents  disproved,  how,  2750. 
counterfeiting,  admissibility  in  prosecution  for,  2954. 
conspiracy,  declarations  of  others,  2939-2941. 

order  of  proof,  2934. 

proof  when  co-conspirators  are  not  named,  2945. 

terminated,  declarations  made  after,  2944. 
false  pretense,  proof  of  crime,  2983. 
forgery,  competency  of  evidence,  2994. 
murder,  admissibility  as  res  gestae,  3030. 

trial,  res  gestae  admissible  when,  3041. 
narrative  not  admissible  to  prove  conspiracy  when,  2943. 
perjury,  res  gestae  admissible  when,  3086. 
robbery,  proof  concerning,  3134. 
treason,  evidence  of,  3160. 


INDEX.  80o 

IReferences  are  to  Sections.'] 
DEED, 

equitable  proceeding,  parol  evidence  concerning,  3215. 

DEFAULT, 

assessment  of  damages  in  admiralty  courts,  3271. 

DEFENSE, 

accessory,  acquittal  of  principal,  2779. 

bigamy,  good  faith  of  second  marriage,  2871,  2872. 

bribery,  defense  to  prosecution  for,  2908. 

circumstantial  evidence,  third  person's  connection  with  facts  shown, 

2726. 
counterfeiting,  what  admissible,  2961. 
criminal  prosecution,  defenses  to,  2726-2731. 
ignorance  of  law  is  not,  2726. 
instructions  cautioning  jury  against,  2733. 
larceny,  defense  to  prosecution  for,  3059. 
motive  disproved  by  accused,  when,  2726. 
receiving  stolen  goods,  restoration  to  owner,  3119. 

DEFINITION, 

abduction  defined,  2740. 

abortion  defined,  2758. 

accessory  defined,  2772. 

accomplice  defined,  2785. 

arson  defined,  2806. 

assault  defined,  2817. 

assault  and  battery  defined,  2835,  2836. 

bigamy  defined,  2859. 

blackmail  defined,  2876,  2877. 

bribery  defined,  2897. 

burglary  defined,  2909. 

conspiracy  to  commit  crime,  2921. 

conspiracy  defined  in  various  states,  2927,  2928. 

counterfeiting  defined,  2952. 

crime  defined,  2702. 

embezzlement  defined,  2962. 

false  pretense  defined,  2973. 

forgery  defined,  2985. 

gambling  defined,  2999. 

homicide  defined,  3012. 

kidnapping  defined,  2735. 

larceny  defined  and  distinguished,  3047,  3048. 

libel  under  criminal  law  defined,  3169. 

manslaughter  defined,  3012. 

murder  defined,  3012. 

mutiny  defined,  3499. 

perjury  defined,  3070. 

public  nuisance  defined,  3060. 


806  INDEX. 

[References  are  to  Sections.'] 

DEFINITION — Continued. 
rape  defined,  3092. 
reasonable  doubt  defined,  2707. 
receiving  stolen  goods  defined,  3110. 
riot  defined,  3122. 
robbery  defined,  3129. 
salvage  defined,  3348-3350. 
seduction  defined,  3141. 
treason  defined,  3154. 

DEGREE  OF  CRIME, 

law  and  fact,  questions  of,  3024. 

DELIBERATION, 

perjury,  elements  of  offense,  3078. 


DEMAND, 


.ND, 

embezzlement,  necessity  for  proving  demand,  2970. 

documentary  evidence,  discovery  of,  3283. 


DEPARTURE, 


pleadings  in  admiralty,  rule  concerning,  3261. 


DEPOSITIONS, 

court  martial,  taking  and  use  of,  3477. 

criminal  prosecution,  privilege  of  reading,  2705. 

equity  cases  in  United  States  Courts,  how  depositions  taken,  3178. 

publication  by  consent,  3183. 
perjury  in  making,  use  of  deposition  immaterial,  3090. 
rape,  denial  by  prosecuting  witness,  3103. 
suppression  in  equity  court,  when,  3183. 
United  States  court  of  equity,  how  taken,  3181. 
act  of  congress,  3182. 

DERELICT, 

abandonment  by  master,  effect  of,  3357. 
duty  of  finder,  salvage  allowed,  when,  3358. 
salvage  upon  recovery  of,  3357. 

DESERTION, 

court  martial,  finding  under  charge  of,  3455. 

for  offense  of,  3485. 

sentence  for  deserter,  3457. 
defense  to  charge  of,  3491. 
dishonorable  discharge,  effect  of,  3490. 
distinguished  from  absence  without  leave,  3485. 
enlistment  proved,  how,  3497. 

with  enemy,  excuse  for,  3488. 
escape  from  guard  house  constitutes,  when,  3489. 
extenuation  or  mitigation  of  charge,  3491. 


INDEX.  807 


[References  are  to  Sections.'] 

DESERTION — Continued. 

forfeiture  of  pay  by  reason  of,  3490. 

intent,  proof  required,  3464. 

log  book  as  evidence,  3317. 

muster  rolls  as  proof  of,  3490. 

penalty  inflicted  by  court  martial,  3487. 

reward  for  arrest  of  deserter,  3492. 

seaman's  return,  effect  of,  3307-3309. 

treasonable  levying  of  war,  what  constitutes,  3158. 

wages  of  seaman  forfeited,  when,  3307. 

DESTRUCTION  OF  EVIDENCE, 

forgery,  destruction  of  forged  instrument,  2993. 

DETECTIVE, 

accomplice  is  not,  when,  2958. 
bribery  proved  by  evidence  of,  2906. 

DIAGRAM, 

homicide,  evidence  In  prosecution  for,  3044. 

DIPLOMACY, 

admiralty  jurisdiction,  nature  of,  3239. 

DIRECT  EVIDENCE, 

conspiracy  need  not  be  proved  by,  2938. 

DIRECTING  VERDICT, 

criminal  prosecution,  authority  of  court,  2732. 

DISCIPLINE, 

court  martial,  jurisdiction  to  enforce,  3421. 

proof  before,  3480. 
intent  implied  from  breach  of,  3464. 
military  law,  relation  to,  3399. 

DISCOVERY, 

demand  for  documentary  evidence,  3283. 
documentary  evidence,  admiralty  practice,  3282. 

application  made,  how,  3284. 

discretion  of  judge,  3285. 

DISCRETION, 

admiralty,  exercise  by  courts,  3261. 

discovery  and  inspection  of  documents,  3285. 

reference  to  master,  power  of  court,  3218. 

salvage,  amount  of  allowance,  3360. 

verdict  set  aside  by  court  of  equity,  abuse  of.  3177. 

DISHONESTY, 

forfeiture  of  seaman's  employment,  3300. 


808  INDEX. 

[References  are  to  Sections.} 
DISLOYALTY, 

•   court  martial  of  officer  for,  3482. 

DISORDERLY  HOUSE, 

nuisance,  prosecution  for  keeping,  3065. 

petition  of  citizens  not  competent  evidence,  3066. 

public  nuisance,  examples  of,  3061. 

reputation  not  proof  of,  3063. 

reputation  of  defendant  not  competent,  3066. 

DISTRIBUTION, 

reference  to  master,  3219. 

DISCOVERY, 

equity  cases,  remedy  allowed,  when,  3195. 
illustrations  in  admiralty  practice,  3287. 
privileged  documents,  3288. 
public  documents  privileged,  when,  3288. 

DIVORCE, 

adultery  after  invalid  divorce,  2805. 
bigamy,  burden  of  proof,  2873. 

effect  of  invalid  decree,  2873. 

DOCUMENTS, 

discovery,  application  made,  how,  3284. 

discretion  of  judge,  3285. 

illustrations  in  admiralty  practice.  3287. 
inspection  of,  demand  for,  3283. 
privilege  against  discovery,  when,  3288. 

as  against  disclosure,  3290. 

documents,  discovery  not  required,  3289. 
production  on  order  of  court,  3286. 
waiver  of  privilege  against  disclosure,  3291. 

DOCUMENTARY  EVIDENCE, 

admiralty,  proof  of  execution  waived,  3253. 

bribery,  introduction  of,  2903. 

court  martial,  production  and  introduction  of,  3466. 

discovery  and  inspection  of  documents,  admiralty  practice,  3282-3291. 

equity  cases,  answer  overcome  by,  3198. 

documents  received,  when,  3214. 
forgery,  production  of  instrument,  2992. 

secondary  evidence  of  forged  instrument,  2993. 
former  jeopardy,  what  essential  to  prove,  2731. 
master  in  chancery,  what  competent  before,  3188. 
notice  of  intention  to  introduce,  3196. 
proof  of  instruments  in  courts  of  equity,  3196. 
perjury,  proof  of  offense  by,  3089. 
ship's  papers  in  prize  courts,  3338-3343. 


INDEX.  809 

[References  are  to  Sections.'i 
DOG, 

larceny,  rule  of  law  concerning,  3052. 
parol  evidence  of  return  for  taxation,  3167. 

DRUGS, 

abortion,  attempt  to  produce,  2761. 

abortion  produced  by,  proof  concerning,  2765. 

administering  to  produce  abortion,  what  constitutes,  2763. 

DRUNKENNESS, 

See  Intoxication. 
bribery,  defense  to  charge  of,  2908. 
court  martial  of  military  officer  for,  3482. 

punishment  by,  3493. 

proof  made,  how,  3494. 
criminal  capacity,  effect  on,  2704. 
defense  to  criminal  prosecution,  when,  2729. 
forgery,  criminal  intent  disputed  by,  2996. 
homicide,  intoxication  of  deceased,  3045. 
intent  implied  from  act,  3464. 
morphine  causing,  soldier  excused,  when,  3493. 
mutiny  not  established  by  disorderly  conduct,  3499. 
officers  and  soldiers  punished,  when,  3493. 
receiving  stolen  goods,  knowledge  not  disproved  by,  3114. 
robbery,  intent  disproved  by  evidence  of,  3140. 
sale  of  intoxicating  liquor  to  drunkard,  how  proved,  3171. 
seaman's  forfeiture  of  wages  by,  3301. 

DYING  DECLARATIONS, 

abortion,  admissibility  in  prosecution  for,  2770. 
admissibility  as  evidence,  3032,  3033. 
eye  witnesses  to  occurrence  do  not  exclude,  3032. 
homicide,  dying  declarations  not  competent,  when,  3045. 

use  as  evidence,  3031. 
prosecution  for  murder  of  another  person,  declarations  not  admissi- 
ble, 3032. 

DYNAMITE, 

robbery  proved  by  possession  of,  3138. 


E 

EAVESDROPPER, 

public  nuisance,  examples  of,  3061. 

EMBEZZLEMENT, 

absconding,  waiver  of  demand  by,  2970. 
agency,  proof  necessary,  2972. 

commissions  not  paid,  effect  of,  2971. 
books  kept  by  defendant  as  evidence,  2972. 


810  INDEX. 

[References  are  to  Sections.l 

EMBEZZLEMENT — Continued. 

burden  of  proof  in  prosecution  for,  2965. 
circumstantial  evidence  of  offense,  2969. 
conversion  of  property  excuses  demand,  2970. 
corporation  ownership,  proof  of,  2969. 
court  martial,  proof  of  offense,  3495. 
defenses  to  criminal  prosecution,  2971. 
definition  of,  2962. 
demand  necessary,  when,  2970. 
distinguished  from  larceny,  2962,  2963,  3495. 
elements  of  crime,  burden  of  proof,  2965. 
evidence  in  general,  2969. 
falsification  of  accounts  as  proof,  3495. 
forfeiture  of  seaman's  employment,  3300. 
illegal  transaction,  money  arising  from,  2971. 
intent,  effect  on  guilt,  2971. 

evidence  of,  2967. 

to  defraud,  effect  of,  2963. 

to  restore  no  defense,  when,  2967. 
larceny  distinguished  from,  3048. 
law  and  fact,  questions  of,  2966. 
law  concerning  prosecutions  for,  2962-2972. 
lien  or  interest  in  property,  effect  of,  2971. 
oflSee  or  rank,  how  proved  at  court  martial,  3495. 
possession  by  defendant,  proof  of,  2972. 
presumption  against  army  officer,  3496. 

in  prosecution  for,  2964. 
receiving  stolen  goods,  what  constitutes,  3110. 
selling  public  property  as  proof,  3495. 
sufficiency  of  evidence  in  criminal  prosecution,  2972. 
trust  relation  must  be  established,  2972. 
weight  of  evidence  in  criminal  prosecution,  2972. 
written  evidence  to  prove,  2968. 

ENEMY, 

aiding  enemy,  what  constitutes,  3422. 
court  martial  for  relieving,  3502. 

ENLISTMENT, 

court  martial,  proof  of  enlistment,  3468-3497. 
parol  evidence  of,  3497. 

EQUITY, 

accounts,  production  before  master,  3190. 
admiralty  jurisdiction,  resemblance  to,  3250. 

practice,  resemblance  to,  3248. 
admissions  by  agreement,  effect  of,  3194. 

by  failure  to  deny  allegation,  3197. 

effect  of,  3193. 


INDEX.  811 

[References  are  to  Sections.'] 

EQUITY— Continued. 

answer  under  oath  as  evidence,  3174. 

for  defendant,  3198. 

limitations  and  exceptions,  3199. 

reply  not  filed,  3200. 

United  States  court  rules,  3180. 

containing  improper  matter,  3204. 

not  responsive,  when,  3202. 

of  co-defendant,  use  of,  3206. 

on  information  and  belief  not  evidence,  when,  3199. 

proved  false  in  part,  effect  of,  3204. 

responsive,  illustrations  of,  3201. 

under  oath  waived  by  plaintiff,  effect  of,  3199. 
avoidance  of  plea,  evidence  required,  3201. 
bill  as  evidence  for  complainant,  3197. 
burden  of  proof,  3211. 

commission  to  take  testimony.  United  States  rules,  3181. 
competency  of  witnesses  in  court  of,  3178. 

of  defendant  not  disputed,  when,  3205. 
confirmation  of  master's  report,  3235. 
costs  of  taking  evidence,  3181. 
cross-bill  and  answer  as  evidence,  3209. 
depositions,  publication  by  consent,  3182. 

under  act  of  congress,  3182. 
discovery  of  evidence  in,  3195. 
documents,  proof  of,  3195,  3196. 
evidence  confined  to  issue,  3214. 

how  taken  in  courts  of  equity,  3178. 
examination  of  creditor  or  claimant,  3189. 
exceptions  to  evidence  at  hearing  before  jury,  3175. 
hearing  on  bill  and  answer,  3200. 

impeachment  of  defendant  not  permitted,  when,  3205. 
infant  parties,  answer  not  evidence  against,  3207. 
injunction  and  quieting  title,  verdict  in,  3175. 
interrogatories  as  controlling  sworn  answer,  3199. 

to  obtain  evidence,  3181. 
issue,  substance  must  be  proved,  3212. 
jury  called  in  discretion  of  court,  3175. 

effect  of  verdict  of,  3175. 

submitting  issues  to,  3176. 

trial  not  allowed  as  of  right,  3175. 
last  interrogatory  under  United  States  rules,  3184. 
master,  attendance  of  witnesses  before,  3187. 
master's  report,  exceptions  to,  3191. 
motion  for  new  trial  required,  when,  3175. 
objections  and  exceptions  to  evidence,  3217. 
oral  evidence,  introduction  of,  3178. 

examination  of  witnesses,  3181. 


812  INDEX. 

[References  are  to  Sections.'] 
EQUITY — Continued. 

parol  and  secondary  evidence,  3215. 

parties  as  witnesses,  3210. 

plea  as  evidence,  3208. 

pleadings  as  evidence,  3193. 

proceedings  before  master.  United  States  court  rules,  3186. 

generally,  3174-3217. 
proof  required,  extent  of,  3211. 
reference  to  master,  3218-3236. 

afBdavits  and  documents  before,  3188. 

under  United  States  court  rules,  3185. 
report  of  master,  duty  concerning,  3227. 

objections  and  exceptions,  3228,  3229. 
responsiveness  of  answer,  test  of,  3203. 
rules  of  evidence  same  as  at  law,  when,  3174. 
sources  of  evidence  in,  3192. 
stenographer  to  take  down  evidence  in,  3181. 
testimony  not  taken,  when,  3220. 

time  allowed  for  taking  testimony  in  United  States  court,  3183. 
United  States  court  rules,  3179. 
variance,  what  constitutes,  3213. 
verdict,  effect  of,  3177. 
weight  and  sufficiency  of  evidence,  3216. 
witnesses,  testimony  of,  3210. 

ESCAPE, 

attempt  as  evidence  of  guilt,  2724. 

ESTOPPEL, 

enlistment,  proof  made,  how,  3497. 

ESTRAY, 

larceny,  felonious  intent  in  taking  up  essential,  3056. 

EVASION, 

equity  cases,  answer  without  effect,  when,  3202. 

EVIDENCE, 

abduction,  subsequent  acts  proved,  when,  2744. 
additional  testimony  before  master,  3225. 
admiralty  courts,  evidence  in,  3237-3395. 

relation  to  pleadings,  3259-3272. 
admissibility  in  admiralty  courts,  3252,  3253. 
conspiracy,  order  of  proof,  2934. 
continuance  of  court  martial  to  procure,  3444. 
court  martial  bound  by,  3453. 

evidence  heard,  where,  3445. 

production  of  documents,  3466. 

record  made  in,  3450. 


INDEX.  813 

[References  are  to  Sections.] 
EVIDENCE— Continued. 

court  martial,  record  taken  down,  3450. 

rules  in,  3459-3477. 

testimony  at  former  trial  inadmissible,  3467. 
criminal  law,  general  principles  and  rules,  2702-2733. 
discovery  and   inspection  of  documents,  admiralty  practice,   3282- 

3291. 
equity  cases,  answer  as  evidence,  3180. 

issue  determines  admissibility,  3214. 

sources  of  evidence,  3192. 

substance  of  issue  must  be  proved,  3212. 

weight  and  sufficiency  of,  3216. 

rules  same  as  at  law,  when,  3174. 
exceptions  to  master's  report,  3232. 
false  pretense,  what  competent,  2980. 
forgery,  proof  of  former  offense,  2990. 
homicide,  admissibility  of,  3044,  3045. 

general  rules  of  prosecution  for,  3043. 
interogatories  concerning  adverse  party's  evidence  not  competent, 
3278. 

to  obtain  in  admiralty  proceeding,  3273,  3277. 
master  in  chancery,  objections  before,  3224. 

power  to  hear,  3223. 

report,  when  required,  3226. 
nuisance,  proof  of  offense,  3062. 
objections  and  exceptions  in  equity,  3217. 
obstruction  of  highway,  how  proved,  3066. 
officer,  examination  at  court  martial,  3471. 
other  crimes,  proof  in  prosecution  for  arson,  2813. 
perjury,  how  proved,  3070-3091. 

pleadings  in  admiralty  courts  constitute,  when,  3270. 
receiving  stolen  goods,  sufficiency  of  evidence,  3121. 
reference  to  master,  3218-3236. 
discretionary  power,  3218. 
relevancy  in  court  martial  trial,  3465. 
riot,  general  rules  as  to  proof  of,  3128. 
salvage,  elements  of  claim,  3354. 
ship's  papers  in  prize  cases,  3337. 
weight  and  sufficiency  in  homicide  case.  3046. 

EXAMINATION  OF  WITNESSES, 

court  martial,  counsel  may  conduct,  3433. 

examination  in  open  court,  3445. 

order  of  introducing,  3449. 

questions  by  members  of  court,  3451. 
equity  cases,  parties  examined,  when,  3190. 

objections  and  exceptions,  3217. 

proceedings  before  master,  3186. 


814  INDEX. 

[References  are  to  Sections.'] 
EXAMINATION  OF  WITNESSES— OoniinuefZ. 
equity  rules  in  United  States  court,  3181. 
reference  to  master,  hearing  before,  3185. 

EXCEPTIONS, 

master's  report  after  reference,  3231,  3232. 
action  on  exceptions  to  report,  3233. 
form  of  exceptions,  3232. 
objections  to  report,  3229. 

EXECUTION, 

proof  of  documents  in  court  of  equity,  3196. 

EXPERIMENTS, 

arson,  proof  in,  2816. 

forgery,  writing  name  in  presence  of  jury,  2995. 

weapons  used  in  presence  of  jury,  3028. 

EXPERT  EVIDENCE, 

counterfeiting,  admissibility  of,  2959. 
court  martial,  opinions  admissible,  when,  3472. 
forgery,  evidence  insufficient  to  convict,  when,  2997. 
gambling,  proof  by  means  of,  3002. 
murder,  examination  of  remains,  3025. 
poisoning  proved  without  aid  of,  3046. 
rape,  corroboration  by  expert  evidence  not  required,  3102. 
physical  examination,  3107. 

EXPERT  WITNESS, 

intoxication  proved  without  calling,  2729. 

EXPLOSION, 

criminal  liability  for,  law  and  fact,  3024. 

EXPLOSIVES, 

nuisance,  storing  and  keeping  dangerous  explosives,  3061. 
storing  constitutes  nuisance,  when,  3069. 

EXTORTION, 

blackmail  embraces  offense  of,  2878. 
distinguished  from  bribery,  2879. 
robbery  does  not  constitute,  3129. 


F 
FABRICATION  OF  EVIDENCE, 

circumstantial  evidence  of  crime,  2712. 

FALSEHOOD, 

abduction,  consent  of  woman  obtained  by,  2751. 


INDEX.  815 

[References  are  to  860110718.2 
FALSE  IMPRISONMENT, 

kidnapping  as  species  of,  2735-2739. 

FALSE  PRETENSE, 

benefit  accruing  to  another  no  defense,  2982. 
character  of  defendant,  proof  of,  2982. 
conspiracy,  declarations  of  co-conspirator,  2983. 

effect  of  proof  of,  2984. 
deceit,  pretense  sufficient,  when,  2979. 
declarations  and  admissions  as  evidence,  2983. 
defenses  to  prosecution  for,  2982. 
definition  of,  2973. 

distinguished  from  other  crimes,  2973,  2974. 
evidence  to  prove  the  pretense,  2980. 
existing  or  past  event  must  relate  to,  2978. 
inference  of  fraudulent  intent,  2975. 
intent  as  an  element  of  crime,  2975. 

of  victim,  proof  of,  2975. 

to  repay  not  a  defense,  2982. 
larceny  distinguished  from,  3048. 
law  concerning,  2973-2984. 

opinion  or  promise,  expression  does  not  constitute,  2978. 
other  crimes  and  transactions,  intent  shown  by,  2976. 
preparation  for  committing  crime,  proof  of,  2976. 
presumption  of  defendant's  guilty  knowledge,  2980. 
pretense,  proof  essential,  2978. 
prudence  of  victim,  necessity  for,  2979. 
reliance  on  pretense  by  victim,  2981. 
robbery  does  not  constitute,  3129. 
symbol  or  token,  use  of,  2977. 
variance  in  proof,  what  constitutes,  2984. 
venue,  how  determined,  2984. 
writing,  proof  of,  2980. 

FAMILY, 

self-defense  includes  right  to  defend  members  of,  2850. 

FEAR, 

forcible  abduction  by  exciting,  2741. 
rape  by  means  of,  3092,  3093. 
consent  obtained  by,  3096,  3097. 
robbery,  elements  of,  3129. 

presumption  concerning,  3131. 

FEDERAL  COURTS, 

admiralty  jurisdiction,  extent  of,  3237-3247. 

in  United  States,  3240. 
reference  to  master  in  chancery,  3218-3236. 


816  INDEX. 

[References  are  to  Sections.'] 
FELONY, 

accessory,  what  constitutes,  2772. 
homicide,  law  of,  3012-3046. 
larceny,  definition  of,  3047. 
robbery,  law  concerning,  3129-3140. 

FICTIONS  OF  LAW, 

abduction  for  illicit  purpose,  forcible  taking  or  detention,  2742. 

FIRE, 

arson,  prosecutions  for,  2806-2816. 

FISH, 

nuisance  by  pollution  of  waters  so  as  to  kill,  3067. 

FLIGHT, 

circumstantial  evidence  of  crime,  when,  2712. 
conscious  guilt  indicated  by,  2724. 
homicide,  evidence  of,  3046. 

FLAG, 

prize  cases,  effect  of  carrying,  3343. 

FOG, 

collision  of  vessels  in,  3385-3390. 
moderate  speed  in  passing  through,  3388.  3389. 
operation  of  boats  in,  contributory  negligence.  3392. 
speed  of  vessel  in,  collision  resulting,  3386-3390. 

FOOTPRINTS, 

arson,  proof  of  identity,  2816. 
burglary,  identity  of  prisoner,  2916. 
identity  established  by,  2715. 

FORCE, 

abduction,  proof  of  force  sufficient  when,  2741. 

FOREIGN  LAW, 

admiralty,  proof  required  when,  3257. 
reference  to  master,  3219. 

FORFEITURE, 

admiralty  jurisdiction  over  subject  of,  3240. 
desertion  and  return  of  seaman,  3309. 

at  end  of  voyage,  3308. 
salvage  forfeited,  when,  3366. 
wages  of  seaman,  desertion  from  vessel,  3307. 

discharge  for  misconduct,  3300. 

forfeited,  how,  3296. 


INDEX.  817 

[References  are  to  Sections.'] 
FORGERY, 

ability  to  imitate  signature,  proof  of,  2991. 
alterations,  concealment  not  essential  to  crime,  2996. 

chemicals  in  defendant's  possession,  2995. 
authority  to  sign  name,  burden  of  proof,  2987. 
bank  notes,  parol  evidence  of  bank's  existence,  2997. 
burden  of  proof,  2987. 

checks  in  defendant's  possession  when  arrested,  2994. 
circumstantial  evidence,  sufficiency  of.  2995. 
counterfeiting  as  species  of,  2952,  n.  1. 
definition  of,  2985. 

destruction  or  suppression  of  forged  instrument,  2993. 
essential  elements  of  crime,  2985. 
evidence  in  defense,  what  competent,  2996. 
expert  evidence  of  handwriting  insufficient,  when,  2997. 
false  pretense  distinguished  from,  2974. 
fictitious  name,  forgery  of,  2997. 

guilty  intent,  proof  of  other  crimes  committed,  2990. 
handwriting,  proof  of,  2991. 

imitation  of  signature,  claim  of  authority  to  sign,  2991. 
indebtedness  of  person  whose  name  is  forged  no  defense,  2996, 
intent  to  defraud  must  be  proved,  2997. 

proof  sufficient,  when,  2990. 

and  knowledge,  proof  of,  2990. 

presumption  of  fraudulent  intent  arises,  when,  2986. 
law  and  fact,  questions  of,  2988. 
notice  to  produce  forged  instrument,  2993. 
other  forged  instruments,  testimony  concerning,  2994. 
other  papers  not  shown  to  be  forged  inadmissible,  2994. 
parol  evidence  to  explain  instrument,  2995. 
passing  forged  paper,  knowledge  of  false  character,  2990. 
possession  of  forged  paper,  presumption  from,  2986. 
presumption  from  possession  of  forged  instrument,  2997. 

in  prosecution  for,  2986. 
production  of  forged  instrument,  2992. 
ratification  does  not  bar  prosecution,  2995. 
repayment  or  intent  to  repay  no  defense,  2996. 
secondary  evidence  of  forged  instrument,  2993. 
signatures,  comparison  of,  2991. 
subjects  of,  court  determines  character,  2988. 
subscribing  witness  not  named  in  indictment,  2991. 
variance,  what  constitutes,  2998. 
venue  established  by  circumstantial  evidence,  2995. 
venue,  possession  of  forged  instrument  in  county,  2997. 
weight  and  sufficiency  of  evidence,  2997. 
witnesses,  who  competent  to  testify,  2989. 

person  whose  name  is  forged  not  indispensible,  2989. 

Vol.  4  Elliott  Ev. — 52 


818  INDEX. 

[References  are  to  Sections.'] 

FORGERY — Continued. 

writing  done  by  another,  defendant's  guilt,  2997. 
in  presence  of  jury  as  evidence,  2995. 

FORMER  JEOPARDY, 

See  Jeopardy, 
FORNICATION, 

single  act,  proof  sufficient,  2797. 

FORT, 

court  martial  for  garrison,  3405. 

FOWLS, 

cruelty  to  animals,  what  constitutes,  3167. 

FRAUD, 

abduction,  consent  of  woman  obtained  by,  2751. 
answer  responsive,  when,  3201. 
arson,  questions  of  law  and  fact,  2809. 

insurance  excessive,  2810. 
conspiracy  to  defraud,  2933. 
embezzlement,  evidence  of  intent,  2967. 
equitable  proceeding,  parol  evidence  of,  3215. 
evidence  in  equity  proceedings  distinguished,  3174. 
forcible  abduction  by  means  of,  2741. 
former  jeopardy,  plea  defeated  by  proof  of  fraud,  2731. 
kidnapping,  consent  obtained  by,  2738. 
larceny  by  means  of,  3050. 
larceny,  possession  obtained  by,  3056. 
prize  cases,  effect  of,  3331. 
rape,  access  obtained  by  fraud,  3096. 

by  means  of,  3092. 

variance  between  pleadings  and  proof,  3109. 

FRAUDULENT  CLAIMS, 

court  martial  for  presenting,  3498. 
guilty  knowledge  proved,  how,  3498, 

FREIGHT. 

wages  of  seaman,  effect  of  loss  of  ship,  3306. 

FUGITIVE  SLAVE  LAW, 

treason  by  opposition  to,  3154. 


G 

GAMBLING, 

accomplices  and  accessories,  3006. 
circumstantial  evidence,  proof  by,  3004. 
common  gambler,  proof  of,  3008. 


INDEX.  819 


[References  are  to  Sections."] 

GAMBLING — Continued. 

confiscation  of  gambling  devices,  3005. 

definition  of  crime,  2999. 

distinguished  from  other  offenses,  2999. 

expert  evidence  concerning,  3002. 

frequenting  gambling  house,  proof  of,  3008. 

instruments  of  calling  as  evidence,  3005. 

judicial  notice  of  terms  used,  3002. 

keeping  gaming  house,  3009. 

keeping  gaming  house  a  nuisance,  when,  2999. 

lottery,  constitutional  law,  3011. 

manner  of  playing,  proof  of,  3002. 

minors  playing,  proof  of,  3010. 

minor  playing,  burden  of  defense,  3010. 

other  offenses,  proof  of,  3004. 

pool  room,  evidence  of,  3005. 

prima  facie  evidence,  statutes  concerning,  3003. 

price  of  refreshment,  wager  of,  3000. 

publicity  of  the  game,  proof  required  when,  3001. 

reputation  of  house  as  proof  of,  3063. 

table  hire,  wager  of,  3000. 

value  of  wager,  proof  essential,  3000. 

variance,  what  constitutes,  3007. 

wager  is  an  essential  element  of,  2999. 

wager,  proof  of,  3000. 

GAMBLING  HOUSE, 

prima  facie  evidence  of  renting  or  keeping,  3003. 
reputation  as  proof  of,  3063. 

GARRISON, 

court  martial  appointed  in,  3405. 

jurisdiction  of  court  martial  defined  by  statute,  3418. 

GIFT  ENTERPRISE, 

judicial  notice  of  law  forbidding,  3011. 

GIRL, 

abduction,  definition  of,  2740. 

for  unlawful  purpose,  2740-2757. 
kidnapping,  proof  concerning,  2739. 

GOOD  FAITH, 

malicious  mischief,  defense  to  prosecution,  3172. 

GREAT  LAKES, 

admiralty  jurisdiction  upon,  3247. 

GUARDIAN  AND  WARD, 

abduction,  taking  child  without  consent  of,  2748. 
equity  cases,  competency  of  witnesses,  3178. 


820  INDEX. 

[References  are  to  Sections.'i 
GUERILLA, 

court  martial,  sentence  for,  3457. 

GUILTY  KNOWLEDGE, 

forgery,  proof  of,  2990. 

other  crimes  of  defendant,  2994. 
similar  acts  proved  to  establish,  2768. 

GUN, 

assault  by  drawing,  what  constitutes,  2829. 
by  use  of,  what  constitutes,  2827. 
burden  of  proof  as  to  being  loaded,  2834. 
unloaded  gun,  2830-2833. 

pointing  is  an  essential  element,  when,  2830. 
pointing  at  another,  presumption  from,  3023. 

GUN  POWDER, 

storage  constitutes  nuisance,  when,  3068. 


H 

HABEAS  CORPUS, 

jurisdiction  of  courts  martial,  burden  of  proof,  3425. 

HABIT, 

murder  trial,  habits  of  deceased  as  evidence,  3040. 

HANDWRITING, 

forgery,  proof  of,  2991. 

signatures,  comparison  of  in  criminal  prosecution,  2991. 

HARBOR, 

high  seas  distinguished  from,  3246. 

HEARSAY, 

admiralty,  admissibility  of  evidence,  3253. 

disorderly  house,  reputation  of,  3065. 

dying  declarations  admissible,  3033. 

homicide,  hearsay  competent  when,  3045. 

public  indecency  not  established  by,  3068. 

robbery,  statements  and  declarations  inadmissible  when,  3134. 

seduction,  preparations  for  marriage,  3149. 

HEIRS, 

reference  to  master,  3219. 

HIGH  SEAS, 

admiralty  jurisdiction,  effect  of,  3246. 

great  lakes,  admiralty  jurisdiction  upon,  3247. 

HIGHWAY, 

existence  proved  in  prosecution  for  obstruction,  3066. 
nuisance  by  obstructing,  3066. 


INDEX.  821 

[References  are  to  Sections.'] 
HOMICIDE, 

See  Murder;  Manslaigiiter. 

accidental  killing,  proof  of,  3042. 

alibi,  proof  of,  3042. 

articles  admissible  in  evidence,  3028. 

attendant  circumstances,  proof  of,  3029,  3030. 

blood  spots,  evidence  concerning,  3044. 

burden  of  proof,  malice  shown  how,  3021. 

self-defense  and  insanity,  3022. 
character  of  accused,  evidence  of,  3039. 

of  deceased,  evidence  of,  3038. 
circumstantial  evidence  competent  in  prosecution  for,  3043. 
confessions  as  evidence,  3034. 

corpus  delicti,  proof  by  circumstantial  evidence,  2708. 
defense,  evidence  must  be  relevant  to,  3042. 
definition  and  classification,  3012. 
destruction  of  body,  effect  of,  3046. 
dying  declarations  as  evidence,  3031. 
evidence  admissible,  general  discussion,  3043,  3044. 

of  physical  condition  of  deceased,  3025. 

weight  and  sufficiency  of,  3046. 
guilt  of  another  person  as  a  defense,  3042. 
inquest,  proceedings  of  coroner,  3037. 
intent,  evidence  of,  3044. 

to  kill,  burden  of  proof,  3023. 
intoxication  of  deceased,  evidence  concerning,  3045. 
justification  or  excuse  for  killing,  3041a. 
law  and  fact,  questions  of,  3024. 
malice  presumed,  when,  3016. 
means  used  to  cause  death,  3027. 
mitigating  facts,  burden  of  proof,  3023. 
motive,  evidence  concerning,  3026. 
other  offenses  proved,  when,  3043. 

passion  or  sympathy,  evidence  to  arouse  inadmissible,  3043. 
physician's  evidence  concerning,  3044. 
place  where  body  was  found,  proof  concerning,  3029. 
poisoning  proved  without  chemical  analysis.  3046. 
premeditation  and  malice  presumed,  when,  3017. 
presumptions  generally,  3020. 

as  to  degree  of  offense,  3019. 

as  to  intent,  3013. 

not  indulged  when,  3018. 

of  criminal  intent,  3014. 

of  innocence,  3013. 
provocation,  proof  of,  3042. 
rebuttal  evidence,  what  competent,  3041. 
retreating  to  wall  not  required,  3041a. 
self-defenpe,  evidence  concerning,  3041. 
somnambulism  as  a  defense,  3042. 


822  INDEX. 

[References  are  to  Sections.'] 
HOMICIDE— Coniinited. 

threats  as  evidence,  3035. 

not  admissible  in  evidence,  when,  3045. 
weapons  carried  by  deceased,  proof  of,  3041. 

variance  between  allegations  and  proof,  3046. 

HORSE  RACE, 

gambling  by  betting  on,  2999. 

HUSBAND  AND  WIFE, 

bigamy,  first  and  second  wives  as  witnesses,  2874. 

law  concerning,  2858-2874. 

proof  as  to  life  of,  2866. 
conspiracy  between,  criminal  prosecution  not  maintained,  2935, 
equity  cases,  answer  responsive  when,  3201. 
motive  for  homicide,  how  established,  3026. 
murder,  motive  shown  how,  3026. 

presumption  of  innocence,  3013. 
self-defense,  right  of,  2850. 


I 

IDEM  SONANS, 

proof  sufficient  in  criminal  charge,  when,  2714. 

IDENTIFICATION, 

receiving  stolen  goods,  what  must  be  proved,  3117. 

IDENTITY, 

arson,  proof  to  establish,  2816. 

recognition  of  voice,  2816, 
bribery,  proof  of,  2900. 
burglary,  proof  of,  2916. 

declarations  of  defendant  admissible,  when,  3030. 
evidence  to  establish,  what  sufficient,  2715. 
homicide,  identity  of  deceased  proved  how,  3044. 
other  offenses  proved  to  establish,  2720. 
property  of  accused  near  scene  of  crime,  2715. 
rape,  confession  as  proof  of,  3103,  n.  79. 
robbery,  identity  established  how,  3133. 
voice' of  robber  recognized,  3133. 

IDIOT. 

rape,  consent  need  not  be  disproved,  3096,  3097. 

IGNORANCE  OF  LAW, 

treason  not  excused  by.  3162. 

IMPRISONMENT, 

courts  martial  in  garrisons  may  inflict,  3405. 


INDEX.  823 

[References  are  to  Sections.'i 
IMPEACHMENT  OF  WITNESS, 

character  of  prosecuting  witness,  proof  of,  2722. 
coroner's  inquest,  proceedings  admissible  when,  3037. 
court  martial,  witnesses  impeached  in,  3476. 
equity  case,  defendant  not  impeached  when,  3205. 
perjury  by  false  answers  to  impeaching  questions,  3074. 
rape,  admissions  of  prosecutrix,  3103. 

complaint  by  prosecutrix  competent  when,  3099. 

INCEST, 

accomplice,  corroboration  of,  3168. 
confessions  as  evidence,  3168. 
definition  of,  3168. 
relationship  of  parties,  3168. 

INCONSISTENT  STATEMENTS, 
arson,  evidence  in,  2815. 

INDECENT  ASSAULT, 

rape  not  proved  by  evidence  of,  3108. 

INDICTMENT, 

conspiracy,  pleading  in  prosecutions  for,  2924-2926.. 
forgery,  variance  shown  when,  2998. 
names  and  dates,  proof  of,  2714. 
surplusage  need  not  be  proved,  2714. 

INFANCY, 

criminal  capacity  of  infant,  2704. 

equity  cases,  answer  not  evidence  when,  3207. 

treason  not  excused,  when,  3162. 

INFERIOR  COURTS, 

courts  martial  are,  3424. 

INFORMER, 

liquor  law  violations,  proof  by,  3171. 

INFORMATION  AND  BELIEF. 

answer  in  equity  overcome  by  one  witness,  3199. 

INJUNCTION, 

verdict  where  title  was  also  quieted,  3175. 

INNOCENCE, 

bigamy,  presumption  of.  2867. 

presumption  of,  burden  of  proof  concerning,  2706. 

INQUEST, 

proceedings  of  coroner  as  evidence.  3037. 


824  INDEX. 

[References  are  to  Sections^ 
INSANE  ASYLUM, 

kidnapping  person  to  confine  within,  2737. 

INSANITY, 

burden  of  proof  to  establish  as  a  defense,  2728. 

criminal  capacity,  effect  on,  2704. 

homicide,  burden  of  proof  to  establish,  3022. 

instructions  cautioning  jury  against  defense  of,  2733. 

intoxication  producing,  defense  to  criminal  prosecution  when,  2729. 

rape,  lack  of  consent,  3092. 

reasonable  doubt,  degree  of  proof,  3022. 

treason  not  excused,  when,  3162. 

INSCRUTABLE  FAULT, 

collisions  at  sea,  rule  applied,  3368. 

INSTRUCTIONS, 

caution  by  court  against  certain  defenses,  2733. 

INSURANCE, 

arson,  legal  existenc»3  of  insurance  company  need  not  be  proved 
2816. 

proof  concerning,  2810. 

INSURRECTION, 

levying  war,  what  constitutes  treason,  3158. 
treason,  what  constitutes,  3154. 

INTENT, 

abduction,  proof  sufficient  when,  2744. 

subsequent  acts  admissible  when,  2744. 
abortion,  proof  of  intent.  2760,  2761. 

corroboration  of  prosecuting  witness,  2769. 
accessory,  proof  required,  ^782. 
arson,  other  similar  crimes  proved  when,  2813. 

previous  attempts  as  proof  of  criminal  purpose,  2812. 
■     proof  sufficient  when,  2807. 
assault  and  battery,  elements  of  offense,  2838. 

intent  inferred  when,  2841. 

presumption  of,  2840. 

shown  without  proof  of,  2839. 
assault  committed  without  entertaining,  when,  2820. 

criminal  intent  an  essential  element,  2718. 

drawing  unloaded  gun,  2831,  2832. 

inference  from  act,  2819. 

need  not  establish,  when,  2821. 

proof  of  intent,  2818. 

violence  intended,  2828. 
bigamy,  good  faith  of  second  marriage,  2871,  2872. 


INDEX.  825 

[References  are  to  Sections.1 

INTENT — Continued. 

blackmail,  criminal  intent  established  how,  2884,  2885. 

by  criminal  prosecution,  2884,  2885. 

knowledge  of  threatened  person's  guilt  no  defense,  2888. 

truth  of  criminal  charge  immaterial  when.  2887. 
bribery,  proof  of  intent,  2901. 
burglary,  criminal  intent  established  how,  2915. 
carrying  concealed  weapons,  proof  of,  31G6. 
circumstantial  evidence  in  prosecution  for  murder,  3014. 
counterfeiting,  inference  of  intent,  2953,  2954. 
court  martial,  proof  required,  3464. 
criminal  intent  must  be  proved,  when,  2716. 
deadly  weapon  used,  question  for  jury,  3024. 
desertion  involves  criminal  intent,  3485. 
embezzlement  distinguished  from  larceny,  2963. 

effect  of  good  intent,  2971. 

evidence  of  intent,  2967. 

felonious  intent  must  be  shown,  2972. 

questions  of  law  and  fact,  2966. 
false  pretense,  defendant  as  a  witness  concerning,  2982. 

elements  of,  2975. 
forgery,  circumstantial  evidence  of,  2995. 

drunkenness  as  a  defense,  2996. 

evidence  in  general,  2995. 

other  forged  instruments  executed  or  possessed  by  defendant, 
2994. 

presumption  concerning,  2986. 

proof  of,  2990. 

proof  of  similar  offenses,  2990. 
homicide,  accused  as  a  witness  concerning,  3044. 

criminal  prosecution  for,  3014. 

presumption  as  to  degree  of  qffense,  3019. 

proof  of,  3046. 
insanity  disproves  criminal  intent,  2728. 
intoxication  rebuts,  when,  2729. 
jury  may  infer  fraudulent  intent,  when,  2988. 
kidnapping,  proof  of  criminal  intent,  2738. 
larceny,  accused  as  witness  concerning,  3055. 

essential  elements  of,  3049-3055. 

felonious  intent  shown  how,  3055. 

fraudulently  obtaining  possession,  3056. 

other  crimes  proved  when,  3057. 
libel,  question  of  intent  for  jury,  3169. 
liquor  law  violations,  proof  of,  3171. 
motive  distinguished  from,  2719. 
mutiny,  offense  proved  how,  3500. 
nuisance  not  excused  by  good  intent,  3064. 
opinion  of  witness  not  competent,  3045. 


826  INDEX. 

[References  are  to  Sections.} 

INTENT — Continued. 

perjury,  other  crimes  as  evidence  af,  3078. 

proof  of  corrupt  intent,  3078. 

proof  of  other  crimes  to  establish,  2720.  n.  85. 

public  indecency,  proof  of,  3068. 

rape,  circumstantial  evidence  of,  3104. 

receiving  stolen  goods,  proof  of,  3115. 

riot,  burden  of  proof  concerning,  3123. 

defendant's  fellows  may  not  testify  to  intent,  3128. 
robbery,  defense  to  prosecution  for,  3140. 

possession  of  stolen  property  as  p"oof  of,  3136. 

proof  of  intent,  3132. 
subsequent  acts  admissible  to  establish,  when,  2744. 
teacher  punishing  pupil  unreasonably,  2844. 
testimony  of  accused  and  others  concerning,  2717. 
weapon  used,  intent  presumed  when,  3014. 

INTEREST, 

reference  to  master  for  computation  of,  3219. 

INTERLOCUTORY  ORDER, 

confirmation  of  master's  report,  3235. 

INTERNATIONAL  LAW, 

admiralty  jurisdiction,  extent  of,  3237-3247. 

INTERROGATORIES, 

admiralty  courts,  libelant  propounding,  3275. 
answers  as  evidence  against  person  making  them,  3281. 
defendant's  right  to  propound  in  admiralty,  3276. 
equity  cases,  answer  not  evidence  when,  3199. 

form  under  United  States  court  rules,  3184. 
testimony  taken  by,  3181. 
evidence  supplied,  when,  3280. 
limitations  on  privilege  of  propounding,  3278. 
materialty  in  admiralty  cases,  3279. 
office  in  admiralty  proceedings,  3277. 
practice  in  courts  of  admiralty,  3273. 

INTOXICATING  LIQUOR, 

circumstantial  evidence  of  illegal  sale,  3170. 

intent  in  violating  law,  3171. 

judicial  knowledge  of  qualities  of,  3170. 

knowledge  of  facts  constituting  violation,  rroof  of,  3171. 

license  disproved  by  positive  evidence,  3170. 

name  of  purchaser,  variance  in  proof  of,  3170. 

presumptions  in  prosecution  for  illegal  sale,  3171. 

quantity  sold,  proof  not  essential,  3170. 

rumor  of  sales  not  competent,  3170. 


IXDEX.  837 


[References  are  to  8ecti07is.'\ 
INTOXICATING    L,lQ\JOR— Continued. 

sales,  prima  facie  evidence  of,  3170. 
sale  to  drink  on  premises,  proof  of,  3171. 
to  drunkard,  proof  of,  3171. 
to  minor,  proof  of,  3171. 
what  constitutes,  3170. 
violations  of  law,  proof  of,  3170. 

INTOXICATION, 

See  Drunkenxess. 
bribery,  defense  to  charge  of,  2908. 
burglary,  defense  to  prosecution  for,  2919. 
counterfeiting,  defense  to  prosecution  for,  2961. 
defense  to  criminal  prosecution,  when,  2729. 
kidnapping  intoxicated  sailor,  proof  of,  2738. 
perjury,  defense  to  prosecution  for,  3090. 
rape,  consent  negatived  how,  3096,  3097. 
robbery,  intent  disproved  by  evidence  of,  3140. 
treason  not  excused  by,  3162. 

ISSUE, 

admiralty  courts,  rules  of  proof,  3259. 
equity  cases,  proof  under,  3212-3214. 
interrogatories  must  be  material  to,  3279. 
reference  to  master  made,  when,  3221. 


J 

JOINT  OFFENSE, 

riot,  number  of  persons  engaged,  3125. 

JEALOUSY, 

motive  for  crime,  proof  of,  3026. 

JEOPARDY, 

defense  to  criminal  prosecution,  when,  2730,  2731. 

burden  of  proof  of  former  jeopardy,  2731. 

evidence  to  establish  former  jeopardy,  2731. 

indictment  insufficient,  effect  of  acquittal,  2730. 

record  evidence  to  establish  conviction  or  acquittal,  2731. 

JOINT  CAPTURE, 

presumption  in  prize  cases,  3344. 

JUDGE  ADVOCATE. 

appointment  in  court  martial,  3409. 
authentication  of  records  by,  3409. 
charges  corrected,  when,  3411. 
court  martial,  appointment  of,  3409. 
duties  to  accused  officer,  3413. 


828  INDEX. 

[References  are  to  8ections.'\ 
JUDGE  ADVOCATE— Continued. 

duties  to  court  martial,  3412. 

enlistment  not  essential,  3410. 

oath  of  members  of  court  administered  by,  3414. 

powers  and  duties  in  court  martial,  3411. 

statute  of  limitations,  duty  as  to  plea  of,  3413. 

who  may  be  appointed,  3410. 

JUDICIAL  NOTICE, 

admiralty  courts  take,  when,  3257. 

admiralty  courts  will  notice,  what,  3257. 

counterfeiting,  proof  unnecessary  when,  2953. 

court  martial,  general  orders  noticed,  3466. 

gambling,  courts  notice  what,  3002. 

intoxicating  liquor,  qualities  of,  3170. 

lottery,  what  notice  taken  by  court,  3011. 

perjury,  record  of  former  case  in  same  court,  3082.  Jj 

JUNK  DEALER, 

receiving  stolen  goods,  evidence  against,  3120. 

JURISDICTION, 

admiralty  courts,  extent  of,  3237-3247. 

showing  of  jurisdiction,  3243. 
bigamy,  proof  of  jurisdiction,  2860. 
courts  martial,  exceeding  authority  of  civil  courts,  3427. 

extent  of  jurisdiction,  3415-3427. 

have  limited  jurisdiction,  3424. 
criminal  case,  proof  required,  2714. 
perjury,  court  in  which  testimony  was  given,  3075. 
prize  cases,  admiralty  courts,  3319. 

possession  of  goods,  3325. 

JURY, 

criminal  prosecution,  province  of,  2732. 
equity,  discretion  of  court  in  calling,  3175. 

submitting  issues  to  jury,  3176. 

use  of  jury,  3175. 

JUSTIFICATION, 

truth  as  a  defense  in  criminal  libel,  3169. 
violation  of  marine  laws  justified,  when,  3376. 


K 
KEEPING  GAMING  HOUSE, 

offense  established  how,  3009. 
reputation  of  house,  proof  of,  3009. 


INDEX.  829 

[References  are  to  Sections^'] 
KIDNAPPING, 

age,  defendant's  belief  concerning,  2739. 

proof  essential  when,  2739. 
consent  of  injured  party  must  be  disproved,  when,  2739. 
definition  and  meaning  of,  2735. 
girl  or  woman,  proof  concerning,  2739. 
intent,  proof  of,  2738. 
proof,  essential  elements  of,  273G. 
secrecy  as  element  of  offense,  2737. 
statutory  change  of  common  law  rule,  2737. 

KNIFE, 

malice  inferred  from  use  of,  question  for  jury,  3024. 

KNOWLEDGE, 

adulteration  of  food,  guilty  knowledge  proved  when,  3165. 


L 
LABOR  UNION, 

combination  as  unlawful  conspiracy,  when,  2949-2951. 

LARCENY, 

alibi  as  a  defense,  3059. 
bailment  of  property,  effect  of,  3050. 
brands  and  marks  recorded,  proof  of,  3052. 
carrying  away  as  an  element  of  crime,  3051. 
character  evidence  admissible,  3059. 
consent  of  injured  party,  effect  of,  2726. 

of  owner  disproved  how,  3054. 
constructive  taking,  proof  of,  3049. 
defenses  to  prosecution  for,  3059. 
definition  of  elements,  3047. 
distinguished  from  other  crimes,  3048. 
embezzlement  distinguished  from,  2962,  2963. 
false  pretense  distinguished  from,  2974. 
felonious  intent  essential,  3047. 
fraud  or  trick  to  obtain  possession,  effect  of,  3050. 
identification  of  property,  3052. 
intent  an  essential  element  of,  3049-3055. 

drunkenness  as  evidence  to  disprove,  3059. 

fraud  to  obtain  possession  of  property.  3056. 

proof  required,  3055,  3464. 

secreting  property  as  proof  of,  3056. 

testimony  of  accused  concerning,  3055. 
malicious  destruction  of  property  does  not  constitute,  3056. 
name  of  owner,  proof  of,  3053,  n.  44. 
other  crimes  proved  in  prosecution  for,  3057. 
ownership,  proof  essential,  3053. 


830  INDEX. 

[References  are  to  Sections.^ 

LARCENY — Continued. 

owner  stealing  from  bailee,  3053. 
parol  evidence  of  ownership,  3053. 
possession  as  proof  of  ownership,  3053. 

honestly  acquired,  effect  of,  3048. 

of  stolen  goods  as  evidence,  3058. 

of  stolen  property  as  evidence,  2725. 

what  constitutes,  3049. 
taking  of  property  must  be  established,  3049. 
trespass  essential  to  commission  of,  3050. 
value  of  property,  proof  of,  3052. 

LAW  AND  FACT, 

arson,  questions  of,  2809. 

bribery,  questions  of,  2899. 

burglary,  questions  of,  2911. 

criminal  intent  in  prosecution  for  libel,  3169. 

prosecution,  province  of  court  and  jury,  2732. 
embezzlement,  questions  of,  2966. 
forgery,  questions  of,  2988. 
homicide,  questions  of,  3024. 
larceny,  felonious  intent  of  accused,  3055. 
perjury,  questions  in  prosecution  for,  3073. 
seduction,  questions  of,  3144. 
self-defense,  questions  of,  3024. 

LAW  OF  FORUM, 

log  book,  competency  and  weight  as  evidence,  3314. 

LAW  OF  THE  SEA, 

usage  as  proof  of,  3395. 

LAWYER, 

court  martial,  counsel  for  accused,  3431. 

LEADING  QUESTION, 

arson,  feeling  toward  owner  of  property,  2816. 

LETTERS, 

blackmail,  proof  of  charge,  2880. 
homicide,  letters  as  evidence,  3044. 
seduction,  admissions  as  evidence,  3150. 

LIBEL, 

blasphemy  by  means  of,  2891. 

criminal  evidence  of,  3169. 

definition  of  criminal  libel,  3169. 

intent,  proof  of,  3169. 

malice  inferred  from  circumstances,  3169. 


INDEX.  831 

[References  are  to  Sections.'^ 

LIBEL — Ccmtinued. 

parol  evidence  to  explain  meaning  of,  3169. 
reasonable  doubt  of  falsity,  effect  of,  3169. 
truth  as  a  defense,  3169. 

LICENSE, 

intoxicating  liquor,  negative  proof  of,  3170. 

LIFE  INSURANCE, 

motive  for  committing  murder,  proof  of,  3026. 

LIQUOR  LICENSE, 

violation  of  law,  proof  of,  3170. 

LOG  BOOK, 

absence  or  concealment  of,  presumption  in  prize  cases.  3341. 

admissibility  in  evidence,  3313. 

burden  of  proof  concerning  recitals  of,  3312. 

conclusive  evidence  not  supplied  by,  3315. 

desertion  of  seaman,  evidence  of,  3307,  3317. 

entries  not  evidence  for  persons  making  them,  3314. 

entry  of  desertion,  forfeiture  of  wages,  3307. 

identification  of,  3313. 

notice  to  produce,  effect  of,  3313. 

parol  evidence  to  vary  statements  of,  3316. 

prima  facie  evidence,  when,  3312. 

wages  of  seaman,  evidence  of,  3317. 

weight  and  competency  as  evidence,  3314. 

LOOKOUT, 

absence  from  vessel,  effect  of,  3380. 
burden  of  proof  as  to  absence,  3381. 

LOTTERY, 

constitutionality  of  laws  forbidding,  3011. 
judicial  notice  taken,  when,  3011. 
policy  tickets  as  lottery  tickets,  3011. 
tickets  competent  as  evidence,  when,  3011. 
what  constitutes,  3011. 


M 
MALICE, 

admissions  of  previous  difficulty  as  evidence,  3036. 

arson  necessarily  involves,  2806. 

assault  and  battery  by  school  teacher,  2844. 

burden  of  proof  in  prosecution  for  murder,  3021. 

cruelty  to  animals,  proof  of  malice  not  required,  3167. 

definition  as  applied  to  murder,  3012. 

homicide,  evidence  of  malice,  3044. 


832  INDEX. 

[References  are  to  8ections.'\ 
MALICE — Continued. 

libel,  inference  from  circumstances,  3169. 
malicious  mischief,  proof  of,  3172. 
perjury,  defendant's  motive  for  crime,  3078. 

presumption  from  use  of  deadly  weapon,  burden  of  rebutting,  3023. 
in  prosecution  for  homicide,  3014,  3016,  3017. 
not  indulged,  when,  3019. 
threats  of  murder  as  evidence  of,  3035. 

MALICIOUS  DESTRUCTION, 

larceny  not  proved  by  evidence  of,  3056. 

MALICIOUS  MISCHIEF, 

cruelty  to  animals  distinguished  from,  3167. 
distinguished  from  larceny,  3172. 
good  faith  as  a  defense,  3172. 

MALICIOUS  TRESPASS, 

distinguished  from  larceny,  3172. 
ownership  of  property  proved,  how,  3172. 

MANSLAUGHTER, 

See  Homicide. 
abortion,  statutory  offense  of,  2759. 
definition  of,  3012. 
presumption  of  innocence,  3013. 

MAP, 

arson,  admissibility  in  evidence,  2814. 
description  of  premises  by,  2816. 
homicide,  evidence  in  prosecution  for,  3044. 

MARINE  INSURANCE, 

discovery  of  contents  of  log,  3287. 
letters  of  captain,  discovery  of,  3287. 
salvage,  law  concerning,  3348-3366. 

MARITIME  CONTRACTS, 

admiralty  jurisdiction  in  the  United  States,  3240. 

MARITIME  LAW, 

admiralty  jurisdiction  controlled  by,  3242. 
admiralty  jurisdiction,  extent  of,  3237-3247. 
collisions  in  fog  caused  by  violation  of,  3385. 
great  lakes,  admiralty  jurisdiction,  3247. 
interrogatories  in  admiralty  courts,  3273-3281. 
judicial  notice  of  admiralty  courts,  3258. 
violation,  justification  for,  3376. 
wages  of  seaman,  admiralty  jurisdiction    3292-3311. 


INDEX.  833 

[References  are  to  Sections.l 
MARRIAGE, 

adultery,  proof  of  marriage  essential  to  conviction,  2798. 

proof  of  marriage  made,  how,  2799-2803. 
bigamy,  law  concerning.  2858-2874. 

second  marriage  proved,  how.  2864. 

validity  of  first  marriage  must  be  proved,  2861. 

void  second  marriage,  2864. 
criminal  prosecutions,  inference  not  raised  when,  2799. 
invalidity  as  a  defense  to  prosecution  for  adultery,  2804. 
life  of  husband  or  wife,  proof  and  presumptions,  2866,  2867. 
presumption  in  prosecution  for  bigamy,  2865. 
prima  facie  proof  in  criminal  prosecution,  2803. 
proof  in  prosecution  for  bigamy,  2861,  2863. 
record  proof  in  prosecutions  for  adultery,  2800. 
seduction,  burden  of  proof,  3142. 

preparations  as  res  gestae,  3149. 

prosecution  barred  by,  3153. 

under  promise  of,  3141,  3148. 
witnesses  present  at  ceremony,  2801. 

MARTIAL  LAW, 

distinguished  from  military  law,  3400. 
drunkenness  of  seaman,  forfeiture  of  wages,  3301. 
jurisdiction,  extent  of,  3400. 
necessity  as  foundation  for,  3400. 

MASTER  AND  SERVANT, 

embezzlement,  presumption  concerning,  2964. 
larceny  from  employer,  what  constitutes,  3049. 
robbery  of  servant,  ownership  of  property,  3130. 
self-defense,  right  of,  2850. 

MASTER  IN  CHANCERY, 

consent  of  parties  to  reference,  3218. 
equity  cases,  proceedings  before,  318-5-3191. 
proceedings  under  United  States  court  rules,  3186. 
reference  to  master,  3218-3236. 

is  discretionary  with  court,  3218. 

of  whole  case,  3218. 

to  master,  3128-3236. 

under  United  States  court  rules,  3185. 

MENACE. 

assault  distinguished  from,  2827. 

MENTAL  ANGUISH, 

assault  and  battery,  injury  to  feelings,  2842. 

Vol.  4  Elliott  Ev. — 53 


334  INDEX. 

[References  are  to  Sections.! 
MILITARY  LAW, 

arrest  before  calling  court  martial,  3428. 

courts  martial,  relation  to,  3399. 

practice,  matters  of,  3428-3436. 

MILITARY  OFFENSES, 

officer's  misconduct,  34S2. 

MILITARY  STORES, 

embezzlement,  proof  before  court  martial,  3495 

MINOR, 

gambling,  proof  of  offense,  3010. 

sale  of  intoxicating  liquor  to,  proof  of,  3171. 

MISCARRIAGE, 

abortion,  law  concerning,  2758-2771. 

MISDEMEANOR, 

crimes  include  misdemeanors,  2702. 

MISPRISION  OF  TREASON, 
definition  of,  3164. 

MISTAKE, 

equitable  proceeding,  parol  evidence  of,  3215. 
perjurj%  defense  to  charge  of,  3071. 

MITIGATION, 

court  martial,  character  evidence  in,  3475. 

MOB, 

fleeing  from  as  evidence  of  guilt,  2724. 

MONOPOLY, 

conspiracy  to  effect  unlawful  purpose,  2930. 

MORTGAGE, 

equitable  proceeding,  parol  evidence  concerning,  3215. 

MOTION. 

master's  report,  how  disposed  of,  3230. 

MOTIVE, 

abortion,  proof  of  motive,  2762. 

acts  following  crime  inadmissible,  3026. 

arson,  evidence  of,  2810. 

carrying  concealed  weapons,  proof  of,  3166. 

criminal  intent  established  how,  2717. 

fraudulent  claims  presented  by  soldier,  motive  immateriaL  3498. 

homicide,  evidence  concerning,  3026. 

evidence  of  motive  not  essential,  3046. 

motive  of  another  person  for  committing,  3044. 


INDEX.  833 

[References  ore  to  Sections.] 
MOTIYE— Continued. 

ill  will,  proof  of.  3026. 

intention  distinguished  from,  2719. 

law  and  fact,  questions  of,  3024. 

nuisance  not  excused  by,  3064. 

other  offenses  proved  when,  3043. 

perjury,  proof  of  corrupt  motive.  3078. 

proof  not  essential  to  conviction  of  criminal,  2719. 

public  indecency,  proof  of,  3068. 

rape,  improper  motive  of  prosecution  shown  when,  3108. 

robbery  or  larceny,  proof  of,  3026. 

MURDER, 

See  HoMK  iDK. 
absence  of  justification,  burden  of  proof,  3023. 
admissions  of  previous  difficulty  as  evidence,  3036. 
appearance  of  accused,  res  gestae,  3029. 
articles  admissible  in  evidence,  3028. 
attendant  circumstances,  proof  of.  3029,  3030. 
body  and  skeleton  as  evidence,  3025. 
burden  of  proof  as  to  time  of  death,  3023. 

malice  shown  how,  3021. 

self-defense  and  insanity,  3022. 
character  of  accused,  evidence  of,  3039. 

of  deceased,  evidence  of,  3038. 
confessions  as  evidence,  3034. 
corpus  delicti,  burden  of  proof,  3023. 

proof  by  circumstantial  evidence.  2708. 
defenses,  evidence  in  favor  of  accused,  3042. 
definition  of,  3012. 

deliberation,  preparation  as  evidence  of,  3036. 
degree,  presumptions  concerning,  3019. 
dying  declarations  as  evidence,  3031. 
evidence  as  to  physical  condition  of  deceased,  3025. 

in  general  in  prosecution  for,  3043. 
experiments  in  presence  of  jury,  3028. 
footprints  of  accused  as  evidence,  3044. 
habits  and  disposition  of  deceased,  evidence  of,  3040. 
homicide,  law  of,  3012-3046. 
immoral  habits  of  deceased  proved  when,  3040. 
ill  will,  evidence  of,  3036. 

inquest,  proceedings  of  coroner  as  evidence,  3037. 
intent  not  conclusively  presumed,  3015. 

preparations  as  evidence  of,  3036. 

proof  required,  3464. 
justification  or  excuse  for  killing,  3041a. 
law  and  fact,  questions  of.  3024. 
means  used  to  cause  death,  3027. 


836  INDEX. 

^References  are  to  Sections.} 
MURDER— Continued. 

mitigation,  burden  of  proof,  3022. 
motive,  evidence  concerning,  3026. 
name  of  deceased,  law  and  fact,  3024. 
physician's  testimony,  what  competent,  3027. 
premeditation  and  malice  presumed  when,  3017. 
premeditation  shown  by  threats,  3035. 
preparations  for  commission  of,  3035. 
presumption  from  use  of  deadly  weapon,  3014-3017. 

of  innocence,  3013. 

of  malice  indulged  when,  3016. 

not  indulged  when,  3018. 
previous  circumstances  as  evidence,  3035. 
quarrels  and  ill  will,  proof  of,  3026. 

as  evidence  of  malice,  3036. 
rebuttal  evidence,  what  competent,  3041. 
reputation  of  deceased  as  evidence,  3038. 
self-defense,  evidence  concerning,  3041. 

character  of  deceased  as  evidence,  3038. 

previous  difficulties  as  evidence  of,  3036. 
stolen  goods,  motive  shown  how,  3026. 
threats  as  evidence,  3035. 
wounds  as  evidence,  3025. 

MUTINEER, 

court  martial,  sentence  for,  3457. 

MUTINY, 

court  martial  for  offense  of,  3499. 
definition  of,  3499. 
forfeiture  of  seaman's  wages,  3300. 
intent  an  element  of  offense,  3500. 

proof  required,  3464. 
suppression,  duty  of  officer  or  soldier,  3500. 
words  alone  do  not  constitute,  3500. 

MUTINY  ACT. 

courts  martial  established  in  England  how,  3397. 

N 
NATURALIZATION, 

parol  evidence  of  perjury,  3085. 

NAVIGABLE  WATER, 

obstruction  as  a  nuisance,  3061,  3067. 


INDEX.  837 

[References  are  to  Sections.l 
NAVIGATION, 

admiralty  courts,  evidence  of  usage,  3256. 

jurisdiction,  extent  of,  3237-3247. 
collisions,  equitable  principles  applied  in  admiralty  courts,  3251. 

law  of,  3367-3395. 
contributory  negligence  as  a  defense,  3392,  3393. 
log  book  as  evidence.  3312-3317. 
nature  of  admiralty  jurisdiction,  3239. 
salvage,  law  concerning,  3348-3366. 
usage,  proof  of,  3395. 
violating  laws  of,  justification  for,  3376. 
wages  of  seaman,  admiralty  jurisdiction,  3292-3311. 

law  concerning,  3292-3311. 
wreck  of  vessel,  wages  of  seaman,  3306. 

NAVY, 

courts  martial,  3396-3502. 

NEGATIVE  PROOF, 

abortion,  necessity  must  be  disproved,  2771. 
equity  cases,  weight  and  sufficiency  of,  3216. 

NEGLIGENCE, 

admiralty  courts,  apportionment  of  damages,  3251. 

equitable  principles  applied  when,  3251. 
collision  at  sea,  fault  presumed  when,  3370. 

inevitable  accident,  3369. 
comparative  negligence,  division  of  damages  in  admiralty,  3373. 
fog,  speed  causing  collision,  3390. 
mutual  negligence,  admiralty  rule,  3391. 
tug  boat  liable  for  injuries  when,  3384. 

NEUTRAL  VESSELS, 

capture  of  prizes,  burden  of  proof,  3326. 

burden  of  proof  on  claimant  when,  3327,  3328,  3329. 

NEUTRAL  WATERS, 

capture  of  vessel  in,  effect  of,  3321. 
proof  and  effect  of,  3322. 

NEW  TRIAL, 

motion  in  court  of  equity  when,  3175. 

NOTARY  PUBLIC, 

certificate  as  evidence  in  admiralty,  3253. 

NOTE, 

Talue,  how  proved,  2972. 


838  INDEX. 

[References  are  to  flections.! 
NUISANCE, 

defense,  evidence  competent.  3064. 

definition  of  public  nuisance,  3060. 

disorderly  house  as  a  public  nuisance,  3065. 

elements  which  must  be  proved  in  prosecution,  3062. 

examples  of  public  nuisance,  3061. 

explosives,  storing  of,  3069. 

gaming  house  constitutes  when,  2999. 

motive  or  intent  immaterial,  3064. 

obstructing  highways,  3066. 

navigable  stream,  3067. 

pollution  of  waters,  3067. 

prescription  gives  no  right  to  maintain,  3064. 

profanity  amounts  to  when,  2895. 

public  indecency  constitutes  when,  3068. 

reputation,  evidence  of,  3063. 

wreck  in  channel  as  a  nuisance,  3067. 


O 

OATH, 

court  martial,  members  taking,  3414. 

swearing  witnesses  in,  3447. 
perjury  in  taking,  what  constitutes.  3070. 

falsity  proved  how,  3077. 

corroboration  as  to  falsity  of,  3089. 
presumption  in  prosecution  for  perjury,  3072. 

OBSCENITY, 

nuisance  constitutes  when.  3068. 

OBSTRUCTING  HIGHWAY, 

nuisance  constitutes  when,  3066. 
public  nuisance,  examples  of,  3061. 

OCEAN, 

admiralty  jurisdiction  upon,  3246. 

OFFICER, 

authority,  proof  in  perjury  cases,  3075. 

bribery,  law  concerning,  2897-2908. 

carrying  concealed  weapons,  excuse  of,  3166. 

conduct  unbecoming  an  officer,  court  martial  for,  3484. 

court  martial  for  misconduct,  3482. 

presumption  in  prosecution  for  perjury,  3072. 

OPINION, 

false  pretense,  expression  does  not  constitute,  2978. 


INDEX.  839 

[Referetrces  are  to  Sections.'] 
OPINION  EVIDENCE, 

court  martial,  admissibility  in.  3472. 

intent  to  kill  not  proved  by,  3045. 

intoxication  proved  by,  2729. 

perjury,  materiality  of  statement  not  proved  by,  3079. 

rape,  age  of  prosecutrix,  3095. 

seduction,  prosecution  for,  3144. 

OPPORTUNITY, 

abortion,  evidence  to  support  charge  of,  2767. 

ORAL  EVIDENCE, 

master  in  chancery,  power  to  hear,  3223. 
wages  of  seamen,  contract  proved  by,  3292. 

ORDER  OF  PROOF, 

riot,  guilt  established  how,  3124. 

ORPHAN, 

seduction,  evidence  of  death  of  parents,  3151. 

OTHER  CRIMES, 

bribery,  proof  of  similar  offenses,  2902. 

burglary,  proof  of,  2917. 

counterfeiting,  proof  admissible  when,  2954. 

false  pretense,  intent  proved  by,  2976. 

former  acts  not  competent  in  prosecution  for  riot,  3128. 

gambling,  proof  competent  when,  3004. 

incest,  probability  of  commission,  3168. 

Intent  established  by  proof  of,  2720. 

larceny,  proof  in  prosecution  for,  3057. 

rape,  admissions  of  defendant  as  to  other  misconduct,  3103. 

proof  by  evidence  of,  3105. 
receiving  stolen  goods,  evidence  competent  when,  3118. 
robbery,  evidence  admissible  when,  3137. 
treason,  proof  in  prosecution  for,  3161. 

OVERT  ACT, 

conspiracy,  proof  not  required  when,  2946,  2947. 
treason,  confession  as  evidence,  3157. 
testimony  to  establish,  3156. 

OWNERSHIP, 

burglary,  proof  and  prosecution  for,  2913. 
cruelty  to  animals,  proof  required  when,  3167. 
larceny,  proof  essential,  3053. 
malicious  trespass,  property  injured.  3172. 
robbery,  presumption  from  possession,  3130. 


840  INDEX. 

[References  are  to  Sections.^ 

P 
PARENT  AND  CHILD, 

abduction,  active  opposition  not  essential,  2750. 

taking  child  without  consent  of  parent,  2748,  2750. 
assault  and  battery  bj^  parent  on  child,  2843. 

presumption  and  burden  of  proof,  2845. 
excessive  punishment,  what  constitutes,  2846. 
murder,  presumption  of  innocence,  3013. 
self-defense,  right  of,  2850. 

PAROL  EVIDENCE, 

arson,  ownership  proved  by,  2814. 

blackmail,  writing  aided  or  explained  by,  2881. 

counterfeiting  bank  notes,  existence  of  bank  proved  how.  295S. 

enlistment  of  soldier  proved  how,  3497. 

equity  cases,  introduction  of,  3178. 

use  allowed  when,  3215. 
forgery,  contents  of  forged  instrument  proved  by,  2993. 
larceny,  ownership  of  property  proved  by,  3053. 
libel  explained  and  identified  by,  3169. 
log  book  varied  or  impeached  by,  3316. 
malicious  mischief,  proof  of,  3172. 
perjury,  authority  of  officer  to  administer  oath,  3075. 

introduction  as  proof  of,  3085. 

PARTIES, 

admiralty,  testimony  admissible  when,  3253. 
prize  cases,  competency  as  witnesses,  3330. 

PARTNERSHIP, 

equity  cases,  answer  not  responsive  when,  3202. 
co-defendant's  answer  as  evidence,  3206. 
PASSION, 

evidence  to  arouse  inadmissible  when,  3043. 

PASSPORT, 

prize  cases,  effect  of,  3343. 

PATENT, 

recommittal  after  reference  to  master,  3234. 

PAYMENT, 

equity  cases,  answer  not  responsive  when,  320E. 

PENETRATION, 

circumstantial  evidence  of,  3104. 
sodomy,  law  requires  proof,  3172a. 

PENITENTIARY, 

court  martial  inflicts  when,  3453. 


INDEX.  841 

[References  are  to  Sections.1 
PERJURY, 

acquittal  at  trial  where  perjury  was  committed  no  defense,  3090. 

admissions  and  confessions  of  defendant,  3088. 

affidavit  for  criminal  prosecution,  effect  of.  3074. 

authority  of  officer  administering  oath,  proof  of,  3075. 

belief  without  foundation  no  defense,  3091. 

best  evidence  of  false  affidavit,  3083. 

burden  of  proof,  3071. 

circumstantial  evidence  of  commission  of,  3087. 

collateral  matters,  testimony  constitutes  when,  3080. 

statements  material  when,  3079. 
corroboration  of  witness,  reputation  of.  3089. 

what  necessary,  3089. 

by  circumstantial  evidence,  3087,  3089. 
cross-examination,  materiality  of  answers,  3079. 
definition  and  essential  elements,  3070. 
deliberation,  evidence  admissible,  3078. 
documentary  evidence  sufficient  to  prove  when,  3089. 
defenses,  how  established,  3090. 
effect  of  false  statements  on  jury  immaterial,  3080. 
elements  of  offense,  3070. 
evidence  of  offense,  3070-3091. 
falsity  of  oath,  proof  of,  3077. 
identity  of  accused,  how  proved,  3083. 
impeaching  questions,  false  answers  to,  3074. 
incompetency  of  witness,  effect  of,  3074. 
intent  implied  from  act,  3464. 

proof  of,  3078. 
intoxication  as  a  defense,  3090. 
jurisdiction  of  court,  law  and  fact,  3073. 

proof  of,  3075. 

recent  cases,  3076. 
law  and  fact,  questions  of,  3073. 
materiality,  how  shown,  3081. 

not  presumed,  3071. 

of  false  statement,  3079. 

questions  of  law  and  fact,  3073. 
motive,  proof  of,  3078. 
oath,  form  of,  3074. 

officer  de  facto,  oath  administered  by,  3075. 
other  crimes,  intent  shown  by  proof  of,  3079. 
paper  sworn  to  as  evidence,  3074. 
parol  evidence  competent  to  prove  when,  3085. 

of  former  testimony,  3082,  3085. 

of  officer's  authority,  3075. 
presumptions  concerning,  3072. 
record  of  former  proceedings  as  evidence,  3081. 
res  gestae,  acts  and  declarations  constitute  when,  3086. 


842  INDEX. 

[References  are  to  Sections.'] 
PERJURY— Continued. 

retraction  of  false  statement,  effect  of,  3078. 

self-defense  no  excuse  for  false  denial  of  killing,  3090. 

signature  by  mark,  effect  of,  3071. 

stenographer's  notes  of  former  testimony,  3084. 

use  or  failure  to  use  false  oath  at  trial  immaterial,  3090. 

variance  between  pleading  and  proof,  3091. 

witnesses  to  fact  of  oath,  3074. 

PERSONAL  INJURIES, 

admiralty  courts,  apportionment  of  damages,  3251. 
salvage,  allowance  in  case  of,  3360. 

PERSONAL  PROPERTY, 

larceny,  what  are  subjects  of,  3052. 

PHOTOGRAPH, 

arson,  description  of  premises  by,  2816. 
forgery,  instrument  proved  by  copy  when,  2993. 
homicide,  evidence  in  prosecution  for,  3044. 

PHYSICAL  EXAMINATION, 

identifying  criminal  by,  2715. 

rape,  corroboration  of  prosecutrix,  3102. 

refusal  of  prosecutrix  to  submit  to  examination,  3102. 

PHYSICIAN, 

abortion,  necessity  declared  by,  2771. 
murder,  testimony  as  to  cause  of  death,  3027. 

PICKETS, 

labor  combination  as  unlawful  conspiracy,  2949-2951. 

PISTOL, 

assault  by  drawing,  what  constitutes,  2829. 
by  use  of,  what  constitutes,  2827. 
pointing  is  an  essential  element  when,  2830. 

PLEA  IN  ABATEMENT, 

jurisdiction  of  admiralty  courts  denied  by,  3243. 

PLEADINGS, 

admiralty  courts,  answers  as  evidence,  3250. 

omissions  and  variations,  3262. 

parties  bound  by  allegations,  3260. 

pleading  special  damages,  3272. 

rules  of,  3259-3272. 
admission  by  failure  to  deny  allegations,  3271. 

effect  in  admiralty  courts,  3271. 
amendment  in  admiralty  courts,  3262-3267. 
answer  in  court  martial,  3442. 


INDEX.  843 

[References  are  to  Sections.'^ 
PLEADINGS— Con  ftnwed. 

charge  and  specification  in  court  martial,  3439. 
conspiracy,  pleading  in  prosecution  for,  2924-2926. 
court  martial  may  conform  to  findings,  3455. 

"on  or  about"  used  when,  3441. 

pleadings  in.  3437-3442. 

statement  of  charge,  3440. 

time  and  place  specified  how,  3441. 
equity  cases,  admissions  contained  in,  3193. 

answer  as  evidence  for  defendant,  3198. 

bill  as  evidence  for  complainant,  3197. 

evidence  constitute  when,  3193. 

in  United  States  courts,  answer  as  evidence,  3180. 

plea  not  evidence  when,  3208. 

sworn  pleadings  as  evidence,  3174. 
evidence  in  admiralty  courts  when,  3270. 
infant  not  bound  by  admissions  in,  3207, 
interrogatories  as  an  aid  in,  3277. 
reference  to  master,  3219. 
sworn  answer  in  admiralty  court,  3270. 

PLEDGE, 

equity  cases,  answer  responsive  when,  3201. 

POISON, 

abortion  by  administering,  proof  of,  2765. 
homicide,  evidence  as  to  administering.  3044. 

proved  without  chemical  analysis,  3046. 
presumption  from  administering,  3017. 
testimony  as  to  behavior  of  deceased,  3027. 

POLICE, 

robbery  of  prisoner,  what  constitutes,  3140. 

POLLUTING  WATERS, 

nuisance  constitutes  when,  3067. 
public  nuisance,  examples  of,  3061. 

POLYGAMY, 

United  States  statutes  for  suppression  of,  2870. 

PONDS. 

public  nuisance,  examples  of,  3001. 

POOL  ROOM, 

gambling,  evidence  of,  3005. 

minor  allowed  to  play,  proof  of  offense,  3010. 

POSSESSION, 

larceny  as  an  offense  against,  3048. 
robbery,  ownership  presumed  from.  3130. 
self-defense  covers  protection  of,  2851. 


844  INDEX. 

[References  are  to  Sections.! 
PRACTICE, 

courts  martial,  practice  in,  3428-3436. 

equity  proceedings  generally,  3174-3217. 

master's  report,  irregularities  attacked  how,  3230-3234. 

prize  cases  in  admiralty  courts,  3318. 

report  of  master  in  chancery,  submitting  draft  of,  3228. 

PRELIMINARY  PROOF, 

declaration  of  co-conspirator  admitted  when,  2940. 

PREMEDITATION, 

circumstantial  evidence  sufficient  when,  3046. 

intoxication  rebuts  when,  2729. 

law  and  fact,  questions  of,  3024. 

malice  presumed  from  homicide  when,  3016. 

perjury,  elements  of  offense,  3078. 

threats  as  proof  of,  3035. 

PREGNANCY, 

abortion,  proof  in  prosecution  for,  2766. 
seduction,  inference  from,  3151. 

promise  of  marriage  in  case  of,  3148. 

PREPONDERANCE  OF  EVIDENCE, 

insanity  of  defendant,  how  established,  2728. 

PRESCRIPTION, 

right  to  maintain  not  gained  by,  3064. 

PRESIDENT, 

court  martial  findings,  approval  required  when,  3457. 

PRESUMPTION, 

abduction,  character  of  victim  presumed  good,  2753. 

previous  chaste  character  presumed,  2755. 
abortion,  necessity  for  producing,  2771. 

arson,  what  presumptions  indulged  in  prosecution  for,  2807. 
assault  and  battery  by  parent,  proof  of,  2845. 

intent  to  injure,  2840. 
bigamy,  living  husband  or  wife,  2867. 

second  marriage,  2865. 
blockade  of  enemy's  ports,  3324. 
burglary,  possession  of  stolen  property,  2918. 

what  presumptions  indulged,  2910. 
chastity  of  abducted  female,  2753,  2754,  2755. 
collision  at  sea,  fault  presumed  when,  3370. 

with  drifting  vessel,  3383. 
conclusive  presumption  not  indulged  when,  3015. 
corroboration  of  witness  as  to  perjury,  3089. 
counterfeiting,  offense  established  how,  2953. 


INDEX.  845 

[References  are  to  Sections.} 
PRESUMPTION— Continued. 

courts  martial,  jurisdiction  of,  3424. 
criminal  capacity  presumed,  2704. 

Intent  established  how,  2717,  2718. 
destruction  of  ship's  papers,  effect  of,  3340. 
embezzlement,  prosecution  for,  2964. 

of  military  property,  3496. 
equity  cases,  sworn  answer  does  not  overcome  when,  3199. 

weight  and  sufficiency  of  evidence,  3216. 
forgery,  what  Indulged,  2986. 
homicide,  degree  of  offense,  3019. 

malice  presumed  when,  3016. 

presumptions  generally,  3020. 

presumption  not  indulged  when,  3018. 
innocence  of  charge  of  murder,  3013. 

effect  of  presumption  of,  2706. 

presumed  In  court  martial,  3461. 
insanity  as  a  defense  to  criminal  prosecution,  2728. 
intent  not  conclusively  presumed,  3015. 

to  kill,  presumption  concerning,  3014. 
joint  capture,  prize  cases,  3344. 

larceny,  possession  of  stolen  goods  as  proof  of,  3058. 
master's  finding,  weight  of,  3236. 

materiality  of  perjured  statement  not  presumed,  3071. 
perjury,  what  presumed  in  prosecution  for,  3072. 
possession  of  forged  paper,  guilt  presumed  when,  2986. 

of  stolen  property  as  evidence  of,  2725. 
prize  cases,  what  presumptions  Indulged,  3323. 
rape,  age  of  defendant,  3108. 

age  of  prosecutrix  raises,  presumption  when,  3095. 

prosecution  for,  3094. 
receiving  stolen  goods,  possession  raises  presumption  when,  3111. 
residence  of  child  or  woman  when  abducted,  2749. 
riot,  intent  presumed  when,  3123. 
robbery,  evidence  aided  by,  3130. 

possession  of  stolen  property  raises  no  presumption,  3136. 

fear  presumed  when,  3131. 

fear  raises  what  presumption,  3131. 
salvage  undertaking,  compensation  for,  3365. 

principles  applied  in  awarding,  3361. 
seaworthiness  of  vessel,  wages  of  seaman,  3299. 
seduction,  what  indulged,  3143. 
statutory  crimes,  evidence  of,  2703. 
time  of  unloading  of  vessel,  seaman's  wages,  3304. 
wages  of  seamen,  action  for,  3296. 


846  INDEX. 

[References  are  to  Sections.'i 
PRIMA  FACIE. 

accessory,  record  of  principal's  conviction,  2778. 
collision  of  vessels  in  fog,  3387. 

with  anchored  vessel,  3379. 
conspiracy,  declarations  of  co-conspirator,  2941,  2942. 
embezzlement  of  military  property,  proof  of,  3496. 
homicide,  malice  proved  how,  3014. 
marriage,  proof  in  prosecution  for  adultery,  2803. 
possession  of  stolen  property,  2725. 
prize  cases,  ship's  papers  as  evidence,  3337. 

what  sufficient  in,  3325. 
sales  of  intoxicating  liquor,  proof  of,  3170. 
statutes  declaring  what  constitutes,  3003. 
statutory  crimes,  evidence  in,  3173. 

PRINCIPAL  AND  AGENT, 

embezzlement,  agency  proved  how,  2969. 

equity  cases,  co-defendant's  answer  is  evidence  when,  3206. 

PRIVILEGE, 

affidavit  as  to  character  of  documents,  what  sufficient,  3289. 
communications  between  solicitor  and  client,  3290. 
discovery  denied  in  admiralty  cases,  when,  3288. 
documents  privileged,  when,  3290. 

privileged  from  discovery,  when,  32S8. 
shorthand  report  of  evidence  privileged,  when,  3289. 
waiver  in  admiralty  cases,  3291. 

PRIZE  CASES, 

admiralty  practice,  3318. 
burden  of  proof,  3326. 

as  to  joint  capture,  3345. 

on  claimant,  when,  3327. 

general  rule,  3327,  3328. 
Illustrations  of,  3329. 
capture  in  neutral  territory,  effect  of,  3321. 
cargo,  presumptions  concerning,  3323. 
concealment  of  ship's  papers,  3341. 
condemnation  presumed,  when,  3323. 

consul  of  neutral  power  trading  in  belligerent  country,  3323. 
contraband  of  Avar,  what  constitutes,  3323. 
destruction  of  papers,  effect  of,  3340. 
enemy's  license,  effect  of,  3342. 
examination  of  crew,  time  and  manner  of,  3333. 
false  claims  and  fraud,  effect  of,  3331. 
flag  carried  b^/  dhip,  effect  of,  3323,  3343. 
fraud  or  misconduct,  effect  of,  3332. 
further  proof  allowed  when,  3332,  3334,  3336. 


INDEX.  84T 


[References  are  to  Sections.} 

PRIZE  CASES— Continued. 

joint  capture,  burden  of  proof,  3345. 

common  enterprise,  3347. 

further  proof  concerning,  3336. 

presumption  concerning,  3344. 

sight  and  signal  distance,  3346. 
jurisdiction  over,  3319,  3320. 

and  relief,  extent  of,  3320. 
master  and  crew,  presumptions  concerning,  3323. 
neutral  protection,  proof  and  effect,  3322. 

burden  of  proof,  3322. 
passport,  necessity  and  effect  of,  3343. 
possession,  presumption  from,  3323. 
preparatory  hearing,  decision  upon,  3332. 
presumption  as  to  blockade,  3324. 

indulged  by  prize  courts,  3323. 
prima  facie  evidence  in,  3325. 
relief  afforded,  when,  3320. 
ship's  papers  as  evidence,  3337. 

absence  of,  3341. 

custody  of,  3339. 

production  of,  3338. 
voyage,  presumption  concerning,  3323. 
war,  burden  of  proof  as  to  existence  of,  3326. 
witnesses,  competency  of,  3330. 

PRIZE  COURTS, 

log  book  as  evidence,  3312-3317. 

statutes  and  ordinances  do  not  apply  when,  3255. 

PROCEEDINGS, 

admiralty  courts  subject  to  statutes  when,  3255 

PROCEEDINGS  IN  REM, 

admiralty  proceedings,  nature  of,  3249. 

PRODUCTION  OP  PAPERS, 

forgery,  production  of  instrument,  2992. 

PROFANITY, 

blasphemy,  law  forbidding,  2889-2896. 
nuisance  constitutes,  when,  2895. 
words  used,  what  sufficient,  2896. 

PROMISE, 

false  pretense  does  not  constitute,  2978. 

PROMISE  OF  MARRIAGE. 

seduction,  proof  of.  3148. 


848  INDEX. 

[References  are  to  Sections. '\ 
PROPERTY, 

assault  and  battery  to  retake  possession,  2856,  2857. 

PROSECUTION, 

blackmail  by  threats  of,  2882-2884. 

collecting  debt  by  threats  of,  2886. 

PROSTITUTION, 

abduction  for  purpose  of,  2740-2757. 

proof  sufficient  when,  2745,  2746. 
adultery  inferred  from  association  with  prostitute,  2794. 

PROVINCE  OP  COURT, 

equity  proceedings,  jury  called  when,  3175. 

PROVISIONS, 

wages  of  seaman,  effect  of  short  allowance,  3310. 

PROVOCATION, 

homicide,  proof  permitted,  3042. 

law  and  fact,  questions  of,  3024. 

malice  presumed  from  killing  without  provocation,  3016. 

murder  extenuated,  question  of  law,  3024. 

PUBLIC  INDECENCY, 

blasphemy,  law  forbidding,  2889-2896. 
nuisance,  examples  of,  3061. 
constitutes,  when,  3068. 

PUBLIC  INJURY, 

conspiracy  to  inflict,  prosecution  for,  2931. 

PUBLICITY, 

gambling  in  public,  proof  of,  3001. 

PUBLIC  MORALS, 

nuisance  by  public  indecency,  3068. 

PUBLIC  NUISANCE, 

blasphemy  as  constituting,  2893. 
nuisance,  law  concerning,  3060-3069. 

PUBLIC  OFFENSE, 

definition  of  crime,  2702. 

PUBLIC  OFFICER, 

bribery,  law  concerning,  2897-2908. 

proof  of  election  and  qualification,  2905. 
embezzlement,  presumption  arises  when,  2964. 
extortion  constitutes  blackmail,  2878. 

PUNISHMENT, 

parent  and  child,  assault  and  battery  when,  2843. 


INDEX.  849 

[References  are  to  Sections.l 
Q 


QUIET  TITLE, 

verdict  in  case  where  injunction  was  asked,  3175. 


R 
RAPE. 

acts  of  unchastity  by  prosecutrix  not  competent,  when,  3101. 
admissions  and  confessions  of  defendant,  3103. 

by  prosecutrix  as  impeaching  evidence,  3103. 
age  of  defendant,  3108. 

of  prosecutrix,  3095. 
burden  of  proof,  3093.  "' 

character  and  reputation  of  prosecutrix,  3101. 
child  of  tender  years  as  a  witness,  3102. 
circumstantial  evidence  of,  3092-3104. 
complaint  and  declarations  as  res  gestae,  3098. 

as  corroborative  evidence,  3099. 
condonation  not  a  defense,  3108. 
consent  as  a  defense,  3096. 

corpus  delicti  not  proved  by  confession  alone,  3103. 
corroboration  of  prosecutrix,  3102. 

of  prosecutrix  under  age  of  consent,  3105. 
cross-examination  of  prosecuting  witness,  3094. 
defenses  to  prosecution  for.  3108. 
definition  of,  3092. 

deposition  of  prosecuting  witness  denied  by  her,  use  of,  3103. 
force  proved  by  threats,  3093. 

indecent  liberties  with  female  under  age  of  consent,  3108. 
intoxication  negatives  consent,  when,  3096. 
other  offenses  as  evidence,  3105. 
outcries,  proof  concerning.  3098. 
penetration,  proof  of.  3092,  3093. 
physical  examination  of  prosecutrix,  3107. 
physician  as  witness.  3107. 
presumptions  in  prosecution  for,  3094. 
prosecuting  witness  not  a  party  to  prosecution,  3103. 
real  evidence  as  proof,  3106. 

reputation  of  prosecuting  witness,  burden  of  proof,  3093. 
res  gestae,  proof  of,  3098. 
resistance,  proof  of,  3097. 
seduction,  action  for  as  evidence,  3104. 
sleep  negatives  consent,  when,  3096. 
sodomy,  law  similar,  3172a. 
statements  of  prosecutrix  as  evidence,  3096. 
variance  between  pleadings  and  proof.  3109. 

Vol.  4  Elliott  Ev.— 54 


860  INDEX. 

[References  are  to  SectionsA 
REAL  ESTATE, 

larceny,  rule  at  common  law,  3052. 

sale,  reference  to  master,  3219. 

REAL  EVIDENCE, 

arson,  proof  in,  2816. 

gambling  instruments  admissible,  when,  3005. 

homicide,  articles  admissible  when,  3028. 

lottery  tickets  competent,  when,  3011. 

rape  proved  by,  3106. 

REASONABLE  DOUBT, 

abortion,  negative  allegation  as  to  necessity  for  producing,  2771. 

pregnancy  proved  when,  2766. 
accessory,  proof  of  guilt,  2777-2781. 
alibi  proved  justifying  an  acquittal,  2727. 
arson,  burden  of  proof  in,  2808. 
bigamy,  proof  of  first  marriage,  2863. 
bribery,  proof  of  crime,  2898. 

burden  of  proof  not  shifted  by  raising  doubt,  3474. 
circumstantial  evidence  of  murder,  3043. 

proof  of  crime  by,  2707. 

proof  of  each  link  in  chain,  2713. 
collisions  at  sea,  effect  of,  3367. 
corroboration  as  to  accomplice,  2786. 
court  martial,  effect  of,  3470. 

rule  concerning,  3461. 
criminal  prosecution,  burden  of  proof.  2706. 
definition  of,  2707. 
embezzlement,  proof  of  crime,  2972. 
forgery,  burden  of  proof,  2987. 
Insanity  as  a  defense,  proof  sufficient,  when,  2728. 
larceny,  intent  proved  how,  3055. 
perjury,  degree  of  proof  required,  3071. 
proof  to  exclude,  what  necessary,  2709. 
rape,  child  not  corroborated,  3102. 

proof  of,  3093. 
receiving  stolen  goods,  burden  of  proof,  3112. 
self-defense,  proof  of,  3022. 
truth  of  alleged  libel,  proof  of,  3169. 

RECAPTURE, 

assault  and  batterj'  in  recovering  property,  28.56,  2857. 

RECEIVERS, 

master  in  chancery,  authority  over,  3219. 

RECEIVING  STOLEN  GOODS. 

acquittal  of  thief  no  defense,  3120. 
aiding  thief,  effect  of,  3115. 


iNDii:x.  851 

[References  are  to  Sections.] 
RECEIVING    STOLEN    GOODS—Contimied. 
burden  of  proof,  3112. 
character  evidence  in  trial  for,  31  It), 
circumstantial  evidence  of  guilty  knowledge,  3114. 
confession  of  accused,  corroboration  of,  3120. 

of  thief  not  competent,  311:!. 
concealment  as  evidence  of  guilty  knowledge,  3113. 
conspiracy,  proof  of,  3120. 
conversation  with  thief,  evidence  of.  3120. 
conviction  of  thief  proved  by  record.  3120. 
defenses,  proof  of,  3119. 
definition  of  term,  3110. 

drunkenness  not  competent  to  disprove  guilty  knowledge,  3114. 
elements  of  crime,  proof  required,  3113. 
evidence,  sufficiency  of,  3121. 

exclamations  admissible  as  res  gestae,  when,  3119. 
explanation  of  possession,  3111. 
from  whom  received,  proof  concerning,  3113. 
guilt  presumed  from  possession,  when,  3111. 
identification  of  property,  3117. 
intent  to  defraud,  proof  of,  3114. 
junk  dealer,  law  not  complied  with,  3120. 
knowledge  of  theft  inferred,  when,  3113. 

presumption  from  possession,  3111. 

that  goods  were  stolen,  proof  of,  3113. 
other  offenses  proved,  when,  3118. 
possession  as  evidence  of  guilty  knowledge,  3114. 
presumptions  from  possession,  3111. 
purchase  for  less  than  value,  effect  of.  3111. 
receipt  by  defendant,  what  constitutes.  3121. 
reputation  of  thief,  guilty  knowledge  shown  by,  3116. 
restoration  to  owner,  honest  intention,  3119. 
robbery  proved  by  possession  of,  3136. 
second-hand  dealer,  customs  of,  3119. 
statute  of  limitations,  defense  of,  3119. 

subsequent  acts  admissible  to  prove  guilty  knowledge,  3114. 
thief  as  an  accomplice,  corroboi-ation,  3120. 
value  proved,  how,  3120. 
wrappings  as  proof  of  identity,  3117. 

RECORD  EVIDENCE, 

accessory,  conviction  of  principal  shown  how,  2778. 
age,  school  register  not  competent  when.  3095. 
brands  and  marks  on  stolen  property,  proof  of,  3052. 
embezzlement  proved  by,  2968. 
perjury,  proof  to  establish,  3081. 

record  must  be  introduced,  when.  3083. 
receiving  stolen  goods,  conviction  of  thief  proved  how,  3120. 


853  INDEX. 

[References  are  to  Sections.] 
REFERENCE  TO  MASTER, 

accounts,  production  in  equity  cases,  3190. 

taking  of,  3219. 
additional  testimony  after  time  fixed,  3225. 
aflBdavits  and  documents  as  evidence  before,  3188. 
confirmation,  necessity  for,  3235. 
correction  of  report  by  court,  3235. 
discretionary  power  of  court,  3218. 

as  to  taking  additional  testimony,  3225. 
documentary  evidence,  consideration  of,  3223. 
equity  case,  attendance  of  witnesses,  3187. 

examination  of  claimant  or  creditor,  3189. 

United  States  court  rules,  3185. 
evidence  before  master,  3223. 
exceptions  to  report,  3191,  3231,  3232. 

action  upon,  3233. 

immaterial,  action  of  court,  3233. 

to  report,  form  of,  3232. 
finding  of  master,  weight  given  to,  3236. 
hearing  on  bill  and  answer,  reference  not  made,  3220. 

time  and  place  of,  3222. 
irregularities  in  proceedings,  how  questioned,  3230. 
issues  must  be  formed  before  reference,  3221. 
objections  to  evidence  before  master,  3224. 
order  of  reference,  authority  of,  3221. 
pleading,  scope  of  authority,  3221. 
proceedings  under  United  States  court  rules,  3186. 
prosecution  of  cause,  duty  in  regard  to,  3222. 
recommittal  after  reference,  3234. 

evidence  of  necessity  for,  3234. 
report,  additions  to  by  court,  3235. 

essentials  of,  3227. 

incomplete,  recommittal  of  case,  3234. 

objection  to  acceptance  before  master,  3228,  3229. 

of  master,  duty  concerning,  3227. 

submitting  draft  of,  3228. 
re-reference,  power  exercised  when,  3234. 
rules  of  court,  effect  of,  3221. 
title,  investigation  of,  3219. 
when  evidence  should  be  reported,  3226. 

REFORMATION, 

seduction  of  woman  formerly  unchaste,  3147. 

REFRESHING  MEMORY, 

log  book  used  by  captain,  3314. 

REGIMENT, 

courts  martial  appointed  for,  3403. 


IXDEX.  853 

[References  are  to  Sections.} 
REGIMENTAL  COURTS, 

ancient  history  of,  3396. 

creation  of  in  United  States,  3398. 

jurisdiction  defined  by  statute,  3418. 

REPORT, 

master  in  chancery,  essentials  of  report,  3227, 

REPUTATION. 

corroborating  witness  in  perjury  case,  3089. 

court  martial,  evidence  concerning,  3475. 

disorderly  house,  prosecution  for  keeping,  3065. 

gambler  not  convicted  by  proof  of,  3008. 

incest,  relationship  of  parties,  3168. 

intoxicating  liquor,  sales  not  proved  by,  3170. 

keeping  gaming  house,  proof  made  how,  3009. 

marriage  not  proved  by  in  criminal  prosecution.  2799. 

murder  trial,  reputation  of  deceased  as  evidence,  3038. 

nuisance,  evidence  of,  3063. 

rape,  proof  of  reputation  of  prosecutrix,  3101. 

prosecutrix  under  age  of  consent,  3095. 
receiving  stolen  goods,  guilty  knowledge  proven  how,  3116, 
seduction,  presumption  in  prosecution  for,  3143. 

proof  of  reputation.  3146. 

time  referred  to,  3145. 

RESCUE  OF  PRISONER, 

riot,  what  constitutes,  3127. 

RES  GESTAE, 

bribery,  documentary  evidence  admissible  when,  2903. 
declarations  accompanying  killing,  3030. 

admissible  when,  3030. 

of  bystander  during  murder,  3030. 

of  deceased  admissible,  when,  3030. 

of  deceased  admissible  at  murder  trial,  3041. 
dying  declarations,  admissibility  of,  3033. 
homicide,  what  competent,  3029,  3030. 
perjury,  acts  and  declarations  in  connection  with,  3086. 
rape,  other  offenses  as  evidence,  3105. 

proof  of  matters  of,  3098. 
receiving  stolen  goods,  exclamations  as  evidence,  3119. 
riot,  proof  of  circumstances  of.  3128. 
robbery,  proof  of  facts  connected  with,  3134. 
seduction,  what  competent  as  evidence,  3149. 
treason,  what  admissible  as,  3160. 

RESIDENCE, 

abduction,  what  constitutes  residence  in  prosecution  for,  2749. 


854  INDEX. 

[References  are  to  Sections.^ 
RESISTING  ARREST, 

consciousness  of  guilt  indicated  by,  2724. 

RETRACTION, 

perjury,  effect  of  subsequent  retraction,  3078. 

REVENUE. 

admiralty  jurisdiction  over  subject  of,  3240. 

REVIEW  OF  JUDGMENT, 

courts  martial  not  subject  to  civil  courts,  3426. 

REWARD, 

arrest  of  deserter,  reward  due  when,  3492. 

RIOT, 

assault,  present  ability  need  not  be  proved,  3128. 

burden  of  proof,  3123. 

definition  of,  3122. 

evidence  in  general,  3128. 

former  riotous  acts  not  competent,  3128. 

intent  as  an  element  of,  3122. 

not  proved  by  members  of  party,  3128. 
number  of  persons  engaged,  proof  of,  3125. 
order  of  proof  as  to  guilt,  3124. 
participation,  proof  concei'uing,  3126. 
presumptions  in  aid  of  evidence,  3123. 
refusal  to  disperse,  proof  of,  3126. 
res  gestae,  proof  of,  3128. 
secret  society  membership  as  proof,  3128. 
terror  of  people,  proof  of,  3127. 
threats  constitute  violence,  when,  3127. 
treasonable  levying  of  war  distinguished  from,  31! 
trespass  constitutes,  when,  3127. 

ROBBERY, 

accomplice  wounded,  proof  concerning,  3139. 
alibi  as  a  defense,  3140. 

proof  of  identity  to  overcome,  3133. 
assumed  name  as  evidence  of  guilt.  3139. 
belief  of  defendant,  testimony  concerning.  :;140. 
burglar  tools  as  evidence,  3138,  3139. 
circumstantial  evidence  as  proof  of,  3138. 

corroboration  necessary,  3139. 
complaint  by  victim  proved,  when,  3134. 
court  martial,  sentence  in  time  of  war.  34.^)7. 
defenses  to  prosecution  for.  3140. 
definition  of  offense,  3129. 
distinguished  from  larceny,  3129. 
identity  of  accused,  proof  of,  3133. 


INDEX.  855 

[References  are  to  Sections.'] 
ROBBERY— Continued. 

implements  found    in   defendant's   possession   are   evidence,    when, 

3138. 
intent,  defendant  may  testify  to,  3140. 

proof  of,  3132. 
joke  as  a  defense,  value  of  property,  3135. 
marked  currency  as  evidence,  3139. 
other  offenses,  evidence  admissible  when,  3137. 
ownership  established  by  mere  possession,  3130. 
police  officers  guilty,  when,  3140. 
possession  of  stolen  property,  proof  of,  3136. 
presumption  as  to  fear,  3131. 

as  to  force.  3131. 

as  to  ordinary  course  of  business,  3131. 

in  aid  of  evidence,  3130. 
res  gestae,  proof  of,  3134. 
value,  evidence  of,  3135. 

ROMAN  LAW, 

admiralty  jurisdiction  determined  by,  3241. 

ROUT, 

definition  of.  3122. 

law  concerning  unlawful  assemblies,  3122-3128. 

RULES  OF  COURT. 

equity  cases,  form  of  last  interrogatory,  3184. 

United  States  rules,  3179. 
interrogatories  in  admiralty  court,  3274. 
United  States  court,  equity  cases,  3178. 

RUMOR. 

disorderly  house,  evidence  of,  3065. 


S 
SAILING  VESSEL, 

collision,  burden  of  proof  concerning,  3378. 

SAILOR, 

kidnapping,  what  constitutes,  2738. 
wages  of  seaman,  3392-3311. 

SALE. 

reference  to  master,  3219. 

SALVAGE, 

agreement  for  services,  effect  of,  3361. 
agreement  to  pay,  burden  of  proof.  3365. 
amount  allovced,  how  determined,  3360. 


>S56  INDEX. 

[References  are  to  Sections.'\ 
SAhYAGE— Continued. 

burden  of  proof  in  claim  for,  3353. 
circumstances  determining  amount  of,  3360. 
claim  forfeited,  when,  3366. 
contract  as  measure  for  amount  of,  3362. 

bars  claim,  when,  3363. 

invalid,  when,  3364. 
contribution  to  saving  of  property,  3352. 
definitions  of,  3348-3350. 
derelict  property,  duty  of  finder,  3358. 

recovery  of,  3357. 
discretion  of  court  in  allowing,  3360. 
elements  of  claim  to  be  proved,  3354. 
essential  elements  of  claim,  3354. 
from  what  payable,  3351. 
general  rules  of  law  concerning,  3348. 
peril  of  property,  proof  of,  3355,  3356. 

degree  of  proof  required,  3356. 
personal  injuries  suffered  in  rescue  work,  3360. 
success  essential  to  payment  of,  3351. 

not  essential,  when,  3352. 
towage  allowed  as  salvage,  when,  3359. 
volunteer  has  no  rights  in,  3352. 

SCHOOL  TEACHER, 

assault  and  battery  on  pupil,  what  constitutes,  2844. 

SCOLDING, 

public  nuisance,  examples  of,  3061. 
reputation  of  common  scold,  3063. 

SEAL, 

admiralty,  contracts  under,  3248. 

SEAMEN, 

presumption  as  to  nationality  of,  3323. 
prize  cases,  examination  of  crew,  3333. 
wages  of  seaman,  admiralty  jurisdiction,  3292-3311. 

SEARCH, 

police  guilty  of  robbery,  when,  3140. 

SEAWORTHINESS, 

wages  of  seaman,  refusal  to  perform  contract,  3299. 

SECONDARY  EVIDENCE, 

equity  cases,  use  allowed  when,  3215. 


INDEX.  857 

[References  are  to  Sections.! 
SEDUCTION, 

admissions  as  evidence,  3150. 

burden  of  proof,  3142. 

chastity  of  prosecutrix,  proof  of,  3145. 

burden  of  proof,  3142. 
circumstantial  evidence  of,  3151. 
corroboration,  extent  required,  3152. 
cross-examination  as  to  unchaste  acts,  3145. 
defenses  to  criminal  action,  3153. 
definition  of  crime,  3141. 
law  and  fact,  questions  of,  3144. 
marriage  as  a  bar  to  criminal  prosecution,  3153. 
presumptions  in  criminal  prosecution,  3143. 
promise  of  marriage,  3148. 
rape  disproved  by  bringing  action  for,  3104. 
reformation  of  prosecutrix,  3147. 

presumption  concerning,  3143. 
reputation  of  prosecutrix,  3146. 
res  gestae,  what  competent  as  evidence,  3149. 
unmarried  woman  only  can  be  criminally  seduced,  3141. 

SELF-DEFENSE, 

assailant  has  right  of,  when,  2849. 

assault  and  battery,  when  justified,  2847-2855. 

burden  of  proof  in  criminal  case,  2855,  3022. 

character  of  deceased  in  murder  trial,  3038. 

declarations  of  deceased  as  res  gestae,  3041. 

degree  of  force  permitted,  2853,  2854. 

excessive  force,  effect  of,  2848. 

family  and  servants  may  be  protected,  2850. 

homicide,  character  of  deceased  as  evidence,  3041. 

justification  or  excuse  for  killing,  3041a. 

law  and  fact,  questions  of,  3024. 

murder,  evidence  of  previous  difficulties,  3036. 

evidence  to  establish  self-defense,  3041. 

motive  established  how,  3026. 
opinions  of  bystanders  incompetent,  3041. 
possession  may  be  defended,  2851. 
property,  defense  of,  2852. 
provoking  quarrel,  effect  on  right  of,  2849. 
punishment  of  assailant  unlawful,  when,  2848. 
reasonable  doubt,  degree  of  proof  required,  3022. 
retreating  to  wall  not  required,  3041a. 
threats,  evidence  admissible,  when,  3041. 
weapons  carried  by  deceased,  proof  of,  3041. 

SENTINEL, 

sleeping  on  post,  extenuating  circumstances.  3503. 


858  INDEX. 

[References  are  to  ^Sections.] 
SEPARATION  OF  WITNESSES, 

court  martial,  separation  allowed  when,  3448. 

SHIP'S  ARTICLES, 

wages  of  seamen,  evidence  concerning,  3292. 

SHIP'S  PAPERS, 

absence,  effect  in  prize  cases,  3341. 

destruction,  presumption  raised  by,  3340. 

enemy's  license,  effect  of,  3342. 

passport,  necessity  and  effect  of,  3343. 

prima  facie  proof  required  in  prize  cases,  3337. 

prize  cases,  burden  of  proof  on  claimant  when.  3327.  3328. 

deposit  with  court,  3339. 
prize  courts,  evidence  in,  3338-3343. 
production  in  prize  court,  3338. 

SHIPPING, 

collisions,  law  of,  3367-3395. 

derelict  property,  what  constitutes,  3357. 

desertion  by  seaman,  effect  of,  3307-3309. 

effect  on  wages,  3307. 
log  book  as  evidence,  3312-3317. 
prize  cases,  law  of,  3318-3347. 
salvage,  law  concerning,  3348-3366. 

SHIPWRECK, 

salvage,  law  concerning,  3348-3366. 

SHOOTING, 

presumption  of  intent,  3014. 

SIGNATURE, 

forgery,  comparison  of,  2991. 

proof  of  handwriting,  2991. 
perjury,  signing  by  mark,  3071. 

SILENCE, 

accused  failing  to  deny  charge,  2723. 

SLANDER, 

abortion  held  not  necessarily  a  crime,  2759. 

SLEEP, 

rape,  consent  negatived  how,  3096. 

SODOMY, 

law  concerning,  3172a. 


IXDEX.  859 

[References  are  to  Sections.^ 
SOLDIERS. 

courts  martial,  3396-3502. 

jurisdiction  to  determine  status  of,  3420. 
drunkenness  on  duty,  punishmrnt  for,  3493. 

SOMNAMBULISM, 

homicide,  defense  to  prosecution  for,  3042. 

SPECIFIC  PERFORMANCE, 

equity  cases,  answer  not  responsive  when,  3202. 

SPEED  OF  VESSEL, 

fog.  moderate  rate  of  speed,  3388. 

SPY, 

court  martial,  sentence  for,  3457. 

STATE  PAPERS, 

discovery  refused  in  admiralty  cases,  when,  3288. 

STATUTES, 

abortion  as  defined  by  statute,  2759. 
accessory  tried,  when,  2777. 
admiralty  courts  controlled,  when,  3255. 
bigamy,  definition  of,  2859. 

distinction  between  various  statutes,  2869. 
blackmail  defined  by.  2877. 
conspiracy,  offense  under  statutes,  2922. 
courts  martial,  jurisdiction  regulated  by,  3419. 
evidence  of  statutory  crimes,  rules  concerning,  2703. 
kidnapping,  common  law  rule  changed  by,  2737. 
perjury  forbidden  by,  3070. 
prima  facie  evidence  of  gambling,  3003. 

STATUTES  AND  ORDINANCES, 

admiralty  jurisdiction,  effect  upon.  3245. 

collision  at  sea.  burden  as  to  violation  of  statute,  3375. 

in  fog  caused  by  violation  of,  3385. 
violation  as  negligence,  admiralty  rule,  3392. 

STATUTE  OF  LIMITATIONS, 

carrying  concealed  weapons,  proof  concerning,  316G. 
court  martial,  judge  advocate's  duty  as  to  plea  of.  3413. 
receiving  stolen  goods,  defense  of,  3119. 

STEALING, 

larceny,  law  concerning,  3047-3059. 

STEAMBOAT, 

admiralty,  judicial  notice  concerning,  3257. 


860  INDEX, 

[References  are  to  Sections.] 
STEAMSHIP, 

collision,  burden  of  proof  imposed  upon.  3377. 
lookout  not  provided,  prima  facie  evidence,  3380. 

STENOGRAPHER, 

equity,  testimony  taken  by,  3181. 

perjury,  notes  of  former  testimony  as  evidence,  3084. 

STEVEDORE, 

seaman's  failure  to  perform  duties  of,  3308. 

STOLEN  PROPERTY, 

accessory  distinguished  from  receiver  of,  2775. 

larceny,  possession  may  be  explained  by  defendant,  3059. 

proved  by  possession  of,  3058. 
possession  as  circumstantial  evidence  of  larceny,  2712-2725. 

as  evidence  of  burglary,  2918. 

as  evidence  of  robbery,  3136. 

explanation  of,  2725. 
receiving  stolen  property,  3110-3121. 

STRIKE, 

labor  combination  as  unlawful  conspiracy,  2949-2951. 

SUBORNING  WITNESSES, 

court  martial,  offense  committed  in,  3481. 

SUBPOENA  DUCES  TECUM, 

court  martial,  judge  advocate  may  issue,  3466. 
telegram  obtained  by,  3469. 

SUBSCRIBING  WITNESS, 

forgery,  testimony  of,  2989. 

SUICIDE, 

habitual  carrying  of  weapons,  proof  of,  3040. 
homicide,  defense  to  prosecution  for,  3042. 
surgeon's  opinion  concerning,  3027. 

SUMMARY  PROCEEDINGS, 

court  martial  conducts,  when,  3406. 
jurisdiction  of  summary  courts  martial,  3418. 

SUPPRESSION  OF  EVIDENCE, 

circumstantial  evidence  of  crime,  2712. 

forgery,  destruction  of  forged  instrument,  2993. 

homicide,  removing  traces  of  killing,  3029. 

motive  for  crime,  proof  of,  3026. 

ship's  papers  destroyed,  presumption  indulged,  3340. 

SURGEON, 

judge  advocate  may  be,  3410. 


INDEX.        "  861 

[References  are  to  Sections.1 


SURPRISE, 

perjury,  defense  to  charge  of,  3071. 

SYMBOL. 

false  pretense,  what  constitutes,  2977. 

SYMPATHY, 

evidence  to  arouse  inadmissible,  when,  3043. 


TEACHER, 

assault  and  battery  on  pupil,  what  constitutes,  2844. 

TELEGRAMS, 

court  martial,  proof  in,  3469. 

THEORY, 

equity  cases  variance  from  theory  of  pleading,  3213. 

THREATS, 

arson,  admissibility  of  evidence,  2811. 

motive  proved  how,  2810. 
assault  by  means  of  making  threats,  2821. 

with  unloaded  gun,  2831,  2832. 
blackmail,  criminal  prosecution  as  means  of,  2882-2884. 

debt  collected  by  means  of,  2886. 

parol  proof  to  aid  or  explain  writing,  2881. 

proof  necessary  to  support  charge  of,  2880. 

prosecution  hinted  at,  2882. 
confession  of  murderer  admissible  when  not  induced  by,  3034. 
forcible  abduction  by  means  of,  2741. 
homicide,  admissibility  of,  3030. 

threats  inadmissible,  when,  3045. 
malice  shown  by  proof  of,  3035. 
premeditation  established  by,  3035. 
rape  by  means  of,  3092.  3093. 

statements  of  accused,  3103. 
riot,  violence  proved  how,  3127. 
robbery  accomplished  by  means  of,  3129. 
self-defense,  evidence  admissible  when,  3041. 
stranger  making,  admissibility  of  evidence  in  defense,  2811. 

TIDES, 

judicial  notice  concerning,  3257. 

TIDE  WATER, 

admiralty  courts,  jurisdiction  of.  3240-3243. 
jurisdiction,  extent  of,  3240. 


862 


INDEX. 


-Pjj^p,  [References  are  to  Sections.-i 

burglary,  proof  as  to  breaking  and  entering,  2914. 

court  martial,  pleading  concerning,  3441. 

criminal  case,  proof  sufficient  when,  2714. 
TITLE, 

reference  to  master  for  investigation,  3219. 
TOKEN, 

false  pretense,  what  constitutes,  2977. 

TOW  BOAT, 

See  Tug  Boat. 
TRACKS, 

arson,  proof  of  identity,  2816. 

TRADE  SECRETS, 

discovery  of  contents  of  documents,  3287. 

TRAITOR, 

court  martial,  jurisdiction  to  punish,  3422. 

TREASON, 

accessories  deemed  principals  in,  3159. 
allegiance,  burden  of  proof  concerning,  3155. 
burden  of  proof.  3155. 

concealment  of  knowledge  concerning,  3164. 
confession  as  corroboration  of  circumstances,  3163. 

as  evidence,  3157. 
corroboration  of  confession,  3157. 
defenses  to  prosecution  for,  3162. 
definition  of  term,  3154. 

desertion  constitutes  levying  war,  when,  3158. 
enlisting  soldiers  does  not  constitute,  3158. 
evidence  in  general,  2163. 
levying  war,  evidence  required,  3158-3163. 

what  constitutes,  3154. 
misprision  of  treason,  3164. 
other  overt  acts  as  evidence,  3160. 
res  gestae,  evidence  admissible  as,  3160. 
riot  distinguished  from,  3158. 
witnesses,  two  essential,  3156. 
words  alone  do  not  constitute.?  3160. 

TRESPASS, 

assault  and  battery,  ejection  from  premises,  2852. 
jurisdiction  of  court  martial  exceeded,  3415. 
larceny,  essential  elements  of,  3050. 
malicious  trespass  distinguished  from,  3172. 
riot  proved  by  evidence  of,  3128. 


INDEX.  S63 

[References  are  to  Sections.] 
TRIAL. 

court  martial,  manner  of  conducting,  3442-3451. 

TRUST, 

equitable  proceedings,  parol  evidence  to  establish.  3215. 
equity  cases,  variance  between  pleading  and  proof,  3213. 
evidence  in  equity  proceedings  distinguished,  3174 

TUG  BOAT, 

collision  with  towed  vessel,  liability  for,  3384. 
salvage  allowed  for  towing,  when,  3359. 

TYPEWRITER, 

equity,  evidence  taken  by,  3181. 

U 

UNITED  STATES  COURTS. 

admiralty  jurisdiction  in.  3244. 

equity  cases,  competency  of  witnesses,  3178. 

depositions  taken  in,  3178. 

rules  of  court,  3179. 
equity  rules,  depositions  taken,  how,  3182. 

time  allowed  for  taking  testimony,  31S3. 

UNLAWFUL  ASSEMBLY, 
burden  of  proof,  3123. 
definition  at  common  law,  3122. 
number  of  persons  engaged,  proof  of.  3125. 
participation  by  defendant,  proof  concerning,  3126. 
presumption  in  aid  of  evidence,  3123. 

USAGE, 

admiralty,  evidence  of,  3256. 

collision  at  sea,  proof  affecting  recovery,  3395. 


VALUE, 

larceny,  elements  of,  3052. 
robbery,  evidence  of,  3135. 

VARIANCE, 

admiralty  practice,  effect  of,  3261. 

assault  by  striking  at  another,  proof  of,  2825. 

bribery,  what  constitutes  a  variance,  2905. 

burglary,  ownership  of  building  and  property,  2913. 

criminal  case,  proof  sufficient  when,  2714. 

equity  cases,  what  constitutes.  3213. 

false  pretense,  what  constitutes  variance,  2984. 

forgery,  what  constitutes,  2998. 


864  INDEX. 

[References  are  to  Sections.} 

VARIANCE — Continued. 

gambling,  what  constitutes  variance,  3007. 
homicide,  proof  sufficient  when,  3046. 
intoxicating  liquor,  name  of  purchaser,  3170. 
perjury,  what  constitutes,  3091. 
rape,  effect  in  prosecution  for,  3109. 

VENUE, 

arson,  proof  in,  2808. 

court  martial,  jurisdiction  of,  3416. 

criminal  case,  proof  required,  2714. 

false  pretense,  how  determined,  2984. 

forgery,  circumstantial  evidence  to  prove,  2995. 

homicide,  proof  sufficient  when,  3046. 

libel  prosecutions,  over,  3169. 

VERDICT, 

equity,  effect  of  verdict,  3177. 
use  of  verdict  in,  3175. 

VESSEL, 

abandonment,  effect  on  seaman's  wages,  3297. 

VIEW  OF  PREMISES, 

arson,  proof  in,  2816. 

VOICE, 

Identifying  accused  by  means  of,  2715,  3133. 

VOYAGE, 

abandonment  of  vessel  on  change  of  voyage,  3298. 
desertion  after  termination  of,  3308. 
wages  due  at  end  of,  burden  of  proof,  3303. 

W 
WAGER, 

gambling,  law  concerning,  2999-3011. 

WAGES, 

labor  combination  as  criminal  conspiracy,  2949-2951. 

WAGES  OF  SEAMEN, 

abandonment  of  vessel,  effect  of,  3297. 

proof  of,  3294. 
burden  of  proof  in  action  for,  3295. 
certificate  of  due  performance  of  duty,  3306. 
change  of  voyage,  abandonment  of  vessel  by  seaman,  3298. 
contract  of  hiring,  dissolution  of,  3294. 

burden  of  proof,  3293. 

construction  of,  3293. 
damages  caused  by  misconduct,  proof  of,  3296. 


INDEX. 

[References  are  to  Sections.] 
WAGES  OF  SEAMEN— Continued. 

desertion  and  return,  effect  on  wages,  3309. 

at  end  of  voyage,  3308. 

effect  of,  3307. 

log  book  as  evidence,  3307. 

what  constitutes,  3307. 
discharge  by  master,  effect  of,  3294. 

for  drunkenness,  3301. 

for  misconduct,  effect  of,  3300. 
discipline,  offenses  against,  3300. 
dissolution  of  contract,  how  effected,  3294. 
employment  of  officers  and  seamen,  contract  of,  3292. 
extra  wages  allowed,  when,  3311. 
forfeiture  for  drunkenness,  3301. 

how  established,  3296. 
freight  not  earned,  seaman's  claim,  3306. 
increase  of  wages,  promise  for,  3305. 
log  book  as  evidence,  3312-3317. 
loss  of  ship,  effect  of,  3306. 
misconduct,  what  justifies  discharge,  3300. 

of  master  or  mate,  effect  of,  3302. 
presumption  as  to  seaworthiness,  3299. 
provisions  insufficient,  burden  of  proof,  3311. 

effect  on  wages,  3310. 
salvage,  law  of,  3848-3366. 
ship's  articles  as  evidence,  3292. 
sickness  at  foreign  port,  effect  of,  3308. 
time  of  unloading  vessel,  presumptions  concerning,  3304. 
unloading  vessel,  wages  become  due  when,  3303. 
unseaworthiness  of  vessel,  effect  of,  3299. 
voyage  ended,  duty  of  sailor,  3308. 

what  constitutes,  3303. 
wreck,  effect  on  claim  for  wages,  3306. 

WAIVER, 

equity  cases,  answer  under  oath  waived.  3199. 

objections  and  exceptions,  3217. 
privilege  against  disclosure  in  admiralty  proceedings,  3291. 

WAR, 

blockade,  presumption  concerning,  3324. 

burden  of  proof  in  prize  cases,  3326. 

courts  martial,  3396-3502. 

martial  law  enforced,  when,  3400. 

prize  cases  in  admiralty,  3318-3347. 

treason,  what  constitutes  levying  war,  3154-3158. 

Vol.  4  Elliott  Ev.— 55 


865 


866  INDEX. 

[References  are  to  Secti07is.'\ 
WEAPON, 

admissibility  in  evidence,  3028. 
assault  by  drawing  fire-arms,  2829. 

witli  intent,  burden  of  proof,  3023. 
carrying  concealed  weapons,  apprehension  of  danger,  3166. 

circumstantial  evidence  of,  3166. 

concealment  an  essential  element,  3166. 

innocent  purpose,  3166. 

officer  excused,  when,  3166. 

statute  of  limitations,  3166. 
conclusive  presumption  of  criminal  intent  not  indulged,  when,  3015. 
homicide,  evidence  as  to  possession  of  weapon,  3044. 

variance  between  allegations  and  proof,  3046. 
law  and  fact,  questions  concerning,  3024. 
murder,  means  of  causing  death,  3027. 

habitually  carrying  by  deceased,  3040. 
presumption  of  intent  from  use  of,  3014. 

of  malice  not  indulged,  when,  3018. 
robbery  proved  by  possession  of,  3138. 
self-defense,  burden  of  proof  as  to  use  of,  3022. 

use  justified,  when,  2849. 
what  constitutes  deadly  weapon,  law  and  fact,  3024. 

WEIGHT  OF  EVIDENCE, 

court  martial  determines,  3453. 

embezzlement,  proof  of  crime,  2972. 

equity  cases,  number  of  witnesses  does  not  determine,  3198. 

rule  in.  3216. 
forgery,  proof  sufficient  when,  2997. 
homicide,  prosecution  for,  3046. 
instructions  cautioning  jury  concerning,  2733. 
log  book,  effect  of,  3314. 
master  in  chancery,  finding  of,  3236. 
threats  of  murder,  weight  as  evidence,  3035. 

WITNESS, 

absence  as  ground  for  continuing  court  martial,  3444. 
accessory,  corroboration  required  when,  278". 
accomplice,  corroboration  of,  2786. 
admiralty  courts,  rules  in,  3250. 
aliens  competent  in  prize  cases,  3330. 
answer  in  equity  overcome,  how,  3199. 
attendance  before  master  in  equity  case,  3187. 
bigamy,  first  and  second  wives  as  witnesses,  2874. 
competency  in  prize  cases,  3330. 
corroboration  in  prosecutions  for  abduction,  2757. 
in  prosecution  for  perjury,  3089. 
in  prosecution  for  seduction,  3152. 


INDEX.  867 

[References  are  to  Sections.} 
WITNESS— Cowiinwed. 

court  martial,  examination  by  counsel,  3433. 

impeachment  of,  3476. 
credibility  determined  by  court  martial,  3453. 
criminal  prosecution,  defendant  as  a  witness,  2705. 
equity  cases,  competency  of  witnesses,  3178. 

testimony  of,  3210. 
examination  in  courts  martial,  3413. 
forgery,  competency  of,  2989. 
interest,  effect  in  equity  cases,  3216. 

oral  examination  in  United  States  courts  of  equity,  3181. 
perjury  by  incompetent  witness,  3074. 
prize  cases,  examination  of  crew,  3333. 
rape,  child  of  tender  years  as  witness,  3102. 
receiving  stolen  goods,  who  competent,  3120. 
separation  in  court  martial,  3448. 
swearing  in  court  martial,  3447. 
treason,  two  witnesses  essential,  3156. 

WOMAN, 

abduction,  definition  of,  2740. 

for  unlawful  purpose,  2740-2757. 
detention  for  illicit  intercourse,  proof  of,  2747. 
kidnapping,  proof  concerning,  2739. 

WOUND, 

murder,  evidence  of,  3025. 

WRECK, 

nuisance  when  channel  is  obstructed  by,  3067. 
wages  of  seaman,  effect  of  wreck,  3306. 

WRITING, 

alteration  constitutes  forgery,  when,  2985. 
forgery,  character  determined  by  jury,  when,  2988. 

proof  of  handwriting,  2991. 
proof  in  courts  of  equity,  3196. 

WRITTEN  EVIDENCE, 

blackmail,  parol  proof  to  aid  or  explain  writing,  2881. 
embezzlement  proved  by,  2968. 
false  pretense  in  writing,  how  proved,  2980. 
forgery,  production  of  instrument,  2992. 

secondary  evidence  of  forged  instrument,  2993 
log  book  varied  by  parol  evidence,  3316. 
perjury,  proof  of  offense  by,  3089. 
master  in  chancery,  power  to  hear,  3223. 

Whole  niuiiber  of  pagfes,  94i6. 


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